Yevginy Polyakov, Plaintiff, v. Pen Enterprises, Inc. and Philip Ettedgui, Defendants. (2025)

Memorandum and Order

Plaintiff Yevginy Polyakov commenced this action on October 19, 2023 alleging labor law violations pursuant to the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”). (ECF No. 1, Compl. ¶¶ 1-3.) Plaintiff alleges that Defendants Pen Enterprises, Inc. (“Pen Enterprises”) and Philip Ettedgui (“Ettedgui,” and together with Pen Enterprises “Defendants”) failed to pay overtime in violation of the FLSA and NYLL and failed to provide notice and accurate wage statements in violation of the NYLL. (Compl. ¶¶ 2-3.) Plaintiff further alleges “national origin-based discrimination and wrongful termination” in violation of the NYSHRL and NYCHRL. (Compl. ¶ 1.)

Presently before the Court is the Parties’ motion pursuant to Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), seeking approval of the Proposed Settlement Agreement reached between Plaintiff and Defendants. (ECF No. 20, “Cheeks Letter”; ECF No. 20-1, “Proposed Settlement Agreement.”) For the reasons set forth below, the request for approval of the Proposed Settlement Agreement is GRANTED.

BACKGROUND

As alleged in the Complaint, Plaintiff worked for Defendants as a project manager at various times between 2022 and 2023. (ECF No. 1, “Compl.” ¶ 38.) Plaintiff's responsibilities “included cleaning up debris and construction garbage, mopping, cleaning and sweeping the construction site, removing garbage, and keeping track[ ] of when employees started and ended their workday.” (Id. ¶ 40.)

Plaintiff alleges that between March 2023 and April 2023, he worked between 50 and 55 hours per week (10 hours per day, five days per week) and that between April 2023 and July 2023, he worked between 45 and 47.5 hours per week (at least 8 hours per day, five days per week). (Id. ¶¶ 45–46.) During this time, Defendants failed to pay overtime under the NYLL and the FLSA (Id. ¶¶ 70–74, 83–89, Counts III & VI) and failed to provide wage notices and wage statements under the NYLL (Id. ¶¶ 75–82, Count IV). As relevant to the instant motion for settlement approval, Plaintiff alleges that Defendants only paid him “$200 per week regardless of the number of hours that he worked.” (Id. ¶ 47.)

Plaintiff, who is Russian, further alleges that Ettedgui, who is non-Russian, verbally harassed him, including by calling him a “Fucking Russian,” “brainless,” and a “stupid moron,” and that Defendants paid his non-Russian colleagues $240 per day, while he was paid only $200 per day for the same work. (Compl. ¶¶ 14-29.) Plaintiff alleges that Defendants “treated him differently than other employees that were not Russian” and “wrongfully terminated [him] because of his Russian national origin,” in violation of the NYSHRL and NYCHRL. (Id. ¶¶ 30–31, 55–69, Counts I & II.) Moreover, “as a result of Defendants’ harassment and wrongful termination of him, Plaintiff ․ [states that he] has suffered and continues to suffer, inter alia, loss of wages, emotional distress, mental anguish, emotional pain, suffering, inconvenience, and loss of enjoyment of life.” (Id. ¶ 37.)

Accordingly, Plaintiff seeks, among other things, unpaid wages and overtime, as well as punitive, liquidated and compensatory damages, as well as attorneys’ fees and costs. (Id. at 16.)

LEGAL STANDARD

The Federal Rules of Civil Procedure afford litigants wide latitude in settling their disputes. See Fed. R. Civ. P. 41(a)(1)(A)(ii) (noting that “the plaintiff may dismiss an action without a court order by filing ․ a stipulation of dismissal signed by all parties who have appeared”). An exception to this rule exists for stipulated dismissals of FLSA actions. See Cheeks, 796 F.3d at 206. Parties may not stipulate to dismiss an FLSA action without submitting the proposed settlement to the district court for review and approval. Id.

Courts in this Circuit frequently look to the factors outlined in Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012), to determine the reasonableness of a proposed settlement. See, e.g., Li Rong Gao v. Perfect Team Corp., 249 F. Supp. 3d 636, 638 (E.D.N.Y. 2017); Cortes v. New Creators, Inc., No. 15-cv-5680 (PAE), 2016 WL 3455383, at *2 (S.D.N.Y. June 20, 2016). These factors include:

(1) the plaintiff's range of possible recovery; (2) the extent to which the settlement will enable the parties to avoid anticipated burdens and expenses in establishing their respective claims and defenses; (3) the seriousness of the litigation risks faced by the parties; (4) whether the settlement agreement is the product of arm's-length bargaining between experienced counsel; and (5) the possibility of fraud or collusion.

Wolinsky, 900 F. Supp. 2d at 335 (internal quotation marks omitted) (quoting Medley v. Am. Cancer Soc'y, No. 10-cv-3214 (BSJ), 2010 WL 3000028, at *1 (S.D.N.Y. July 23, 2010)) (citing Dees v. Hydradry, Inc., 706 F. Supp. 2d 1227, 1244 (M.D. Fla. 2010); Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 54 (E.D.N.Y. 2010)).

“In addition, if attorneys’ fees and costs are provided for in the settlement, district courts will also evaluate the reasonableness of the fees and costs.” Fisher v. SD Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (citing Cheeks, 796 F.3d at 206); 29 U.S.C. § 216(b) (“The court in [an FLSA] action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.”). In the present case, attorneys’ fees and costs are incorporated into the settlement amount. See, e.g., Lopez v. Nights of Cabiria, LLC, 96 F. Supp. 3d 170, 181-82 (S.D.N.Y. 2015) (reviewing FLSA settlement incorporating counsel's fees as part of the total settlement amount).

DISCUSSION

I. Approval of the Proposed Settlement Agreement

The Court has evaluated the Proposed Settlement Agreement against the Wolinsky factors and, for the reasons set forth below, finds the Proposed Settlement Agreement to be a “fair and reasonable compromise of Plaintiff's claims.” Naraine v. Washdry Tech Inc., 749 F. Supp. 3d 398, 410 (E.D.N.Y. 2024).

A. Range of Recovery, Burdens, and Litigation Risks

“The first three Wolinsky factors are interrelated and can be considered together.” Bevel v. Mennella's Poultry Co., Inc., No. 23-cv-5678 (JLR) (SLC), 2024 WL 1349010, at *2 (S.D.N.Y. Mar. 1, 2024), report and recommendation adopted in full, 2024 WL 1346537 (S.D.N.Y. Mar. 29, 2024) (citing Flores v. Dynamic Wireless NYC, LLC, No. 21-cv-6160 (OTW), 2022 WL 3363584, at *2 (S.D.N.Y. July 1, 2022); Amhaz v. Booking.com (USA) Inc., No. 17-cv-2120 (GBD)(OTW), 2019 WL 9122944, *2 (S.D.N.Y. Oct. 29, 2019), report and recommendation adopted in full, 2016 WL 3455383 (S.D.N.Y. June 24, 2020)). The Proposed Settlement Agreement provides for a total payment of $40,000, of which $26,353.60 is payable to Plaintiff.¹ (ECF No. 20 at 5.) The Proposed Settlement Agreement further provides that Plaintiff's Counsel, Lipsky Lowe, will receive a total of $13,646.40 comprising $469.60 in costs and $13,176.80 in fees. (Id.)

On May 20, 2025, the Court directed the Parties to submit “additional information regarding the underlying data and methodology that were used to generate the Settlement Amount,” which the Parties provided on May 27, 2025. (ECF Dkt. Order dated May 20, 2025 (citing Perez v. Ultra Shine Car Wash, Inc., No. 20-cv-782 (KMK), 2021 WL 1964724, at *4 (S.D.N.Y. May 17, 2021); Gaspar v. Pers. Touch Moving, Inc., No. 13-cv-8187 (AJN), 2015 WL 7871036, at *2 (S.D.N.Y. Dec. 3, 2015) (“the parties did not submit the underlying data to which the methodology [used to generate the settlement amount] was applied ․ the parties must submit this information to the Court before the Court can approve the settlement.”)); ECF No. 23, “Suppl. Calc.”)

Plaintiff's Supplemental Calculations estimate that the maximum recovery Plaintiff could obtain for his claims to be $90,039.41. (ECF No. 23-1 at 5.) This estimate is comprised of $25,093.46 for Plaintiff's FLSA and NYLL claims and $64,945.95 for Plaintiff's national origin-based discrimination claims under NYSHRL and NYCHRL. (Id. at 2–5.) Accordingly, the proposed settlement of $26,353.60 amounts to 29.3% of Plaintiff's total possible recovery, a rate courts in this district have found to be reasonable. See Khan v. Young Adult Inst., Inc., No. 18-cv-2824 (HBP), 2018 WL 6250658, at *2 (S.D.N.Y. Nov. 29, 2018) (collecting cases of reasonable FLSA settlements ranging from 25% to 40% of plaintiff's maximum recovery).

Plaintiff would face litigation risks should he fail to settle this action, a factor which weighs in favor of approving the Proposed Settlement Agreement. Lopez v. Poko-St. Ann L.P., 176 F. Supp. 3d 340, 342 (S.D.N.Y. 2016) (finding the proposed settlement amount to be fair “in light of the legal and evidentiary challenges that would face the plaintiffs in the absence of a settlement”). For example, Plaintiff recognizes that the parties “sharply dispute how many hours Plaintiff worked[,] ․ Defendants strongly deny any discriminatory conduct ․ [an issue that] would, ultimately come down to a credibility determination by the trier of fact[, and] Defendants strongly deny Plaintiff would be entitled to anything beyond nominal emotional distress damages.” (ECF No. 23 at 1.) Given these factual disputes, there is a “measurable possibility that [Plaintiff] could have received nothing, or substantially less than he alleged, at trial” on these claims. Bevel, 2024 WL 1349010, at *2. Thus, Plaintiff notes that he would prefer “a guaranteed sum on a guaranteed date, versus an uncertain outcome on an uncertain date with a jury trial.” (ECF No. 23 at 1.)

Accordingly, Plaintiff's substantial recovery under the Proposed Settlement Agreement, which includes “full recovery on the overtime claims,” coupled with the risks he would face through continued litigation, support the Court's finding that the Proposed Settlement Agreement is fair and reasonable. (ECF No. 23 at 1.)

B. Arm's-Length Negotiations

The settlement amount is the result of a settlement conference before Magistrate Judge Robert M. Levy. (ECF No. 23 at 1.) The Court is, therefore, satisfied that it is the result of arm's-length negotiations. Flores, 2022 WL 3363584, at *2 (finding settlement resulting from court-appointed mediation “is evidence of an arm's-length negotiation”); see also Bevel, 2024 WL 1349010, at *3 (same).

C. Risk of Fraud or Collusion

There is also no evidence in the record of fraud or collusion, which weighs in favor of approving the Proposed Settlement Agreement. See Li v. HLY Chinese Cuisine Inc., 596 F. Supp. 3d 439, 449 (E.D.N.Y. 2022) (finding the final Wolinsky factor “weighs in favor of approving the proposed settlement agreement because there is no evidence of fraud or collusion”). Indeed, “because Plaintiff [is] no longer employed by Defendants, the risk of coercion—a concern in other cases—is minimal to non-existent.” Id. (citing Strauss v. Little Fish Corp., No. 19-cv-10158 (LJL), 2020 WL 4041511, at *4 (S.D.N.Y. July 17, 2020); Kaveh v. 1/0 Cap., LLC., No. 16-cv-3494 (JMF), 2017 WL 10436077, at *1 (S.D.N.Y. Feb. 24, 2017) (coercion “concerns are not as relevant when the plaintiff no longer works for the defendant”)). Plaintiff was employed by Defendants from “March 20, 2022 to March 24, 2022 and then from September 2022 to July 12, 2023,” and did not commence the instant lawsuit until his employment ended. (ECF No. 20 at 1; Compl. ¶ 38.) Accordingly, “it is unlikely that Defendants held any undue influence over Plaintiff[ ] when negotiating the Settlement Agreement.” Li, 596 F. Supp. 3d at 449.

D. Agreement Provisions

The Court finds the terms of the Proposed Settlement Agreement to be fair and reasonable. The Agreement “does not include the typical provisions that preclude approval, including ․ [1] highly restrictive confidentiality provisions; [2] non-disparagement provisions that bar truthful statements; and [3] prohibitions on future employment.” Li, 596 F. Supp. 3d at 450 (collecting cases).

Furthermore, Plaintiff will be the only employee affected by the settlement and dismissal of the lawsuit as the complaint does not purport to be brought on behalf of a class of similarly situated individuals. See Escobar v. Fresno Gourmet Deli Corp., No. 16-cv-6816 (PAE), 2016 WL 7048714, at *3 (S.D.N.Y. Dec. 2, 2016) (noting that no other employee came forward and that the plaintiff would “be the only employee affected by the settlement and dismissal,” and that these facts supported approval of the proposed settlement).

Although the Proposed Settlement Agreement contains a general release provision, “courts have found these releases permissible where, as here, the settlement resolves both wage and hour and non-wage and hour claims.” Intal v. Erie Agustin, M.D. Primary Care, P.C., No. 18-cv-03196 (SJ) (JRC), 2022 WL 892084, at *3 (E.D.N.Y. Jan. 27, 2022), report and recommendation adopted in full, 2022 WL 889041 (E.D.N.Y. Mar. 25, 2022) (citing Panganiban v. Medex Diagnostic & Treatment Ctr., LLC, No. 15-cv-2588 (AMD) (LB), 2016 WL 927183, at *3 (E.D.N.Y. Mar. 7, 2016) (approving a general release provision resolving FLSA, NYSHRL, and NYCHRL claims)). Here, Plaintiff is not “waiving ‘unknown rights’ ” because in addition to the FLSA and NYLL claims, the complaint alleged violations of the NYSHRL and NYCHRL and, “at the very least, the plaintiff is aware of [his] claims arising under these statutes.” Panganiban, 2016 WL 927183, at *3. Moreover, “a portion of the settlement proceeds [will] resolve[ ] [P]laintiff's non-wage and hour [discrimination] claim[s].” Intal, 2022 WL 892084, at *3. Accordingly, the Court “finds the general release appropriate in this context.” Id.

II. Attorneys’ Fees & Costs

For the reasons set forth below, the Court finds the requested attorneys’ fees of $13,176.80 and costs of $350.75 to be reasonable.

A. Reasonable Costs

First, “[c]ourts often award [attorneys’] costs that are ‘incidental and necessary to plaintiff's representation.’ ” Morales v. City Scrap Metal, Inc., No. 19-cv-6682 (CLP), 2022 WL 20539979, at *5 (E.D.N.Y. Nov. 16, 2022) (alteration adopted) (quoting Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993)). Here Plaintiff's counsel seeks to recover costs such as “filing fees and process server fees” amounting to $350.75. (ECF No. 20 at 11.) Courts in this Circuit regularly award costs including filing fees, process server fees, and postage. See Morales, 2022 WL 20539979, at *5 (awarding counsel costs in the amount of $1,448.30 for “filing fees and fees for effectuating service on the defendants”); Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 624 (S.D.N.Y. 2012) (awarding counsel costs for filing fees and postage); Naraine, 749 F. Supp. 3d at 409–10 (same). Accordingly, the Court finds the requested costs to be reasonable.

B. Reasonable Fees

Second, “[c]ourts must assess the reasonableness of plaintiff's attorneys’ fees, regardless of whether the fee has been negotiated as part of the settlement amount.” Morales, 2022 WL 20539979, at *5 (citations omitted). Courts consider six factors when assessing the reasonableness of attorneys’ fees in FLSA settlements: “(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation[ ]; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations.” Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000) (citation omitted).

When calculating attorneys’ fees, courts in this Circuit employ either the lodestar method—which is “the product of a reasonable hourly rate and the reasonable number of hours required by the case”—or the “percentage of the fund” method (hereinafter referred to as the “percentage method”)—which “permits attorneys to recover a percentage of the settlement amount via a previously determined contingency fee agreement.” Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011); Cisneros v. Borenstein Caterers, Inc., 761 F. Supp. 3d 513, 519 (E.D.N.Y. 2024) (citing McDaniel v. Cty. of Schenectady, 595 F.3d 411, 417–19 (2d Cir. 2010)).

“In Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182 (2d Cir. 2008), the Second Circuit articulated the method for calculating reasonable attorney's fees [under the lodestar method]: a reasonable hourly rate multiplied by a reasonable number of hours extended on the work constitutes the ‘presumptively reasonable fee,’ also known as the ‘lodestar.’ ” Match Grp., LLC v. Beazley Underwriting Ltd., No. 22-cv-4629 (LGS) (SLC), 2023 WL 9603886, at *6 (S.D.N.Y. Dec. 21, 2023). When determining the reasonable hourly rate, courts consider the prevailing hourly rate within its district as the rate a “reasonable, paying client would have paid.” Arbor Hill, 522 F.3d at 191.

Although “[t]he trend in [the Second] Circuit is toward the percentage method,” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121 (2d Cir. 2005), “even where fees are reasonable when analyzed under the percentage method, courts will additionally perform a lodestar ‘cross-check’ and compare the fees generated by the percentage method with those generated by the lodestar method.” Mendoza v. A.P.P.I. Mgmt. Corp., No. 22-cv-2179 (JMW), 2023 WL 4471944, at *4 (E.D.N.Y. July 11, 2023) (quoting Mobley v. Five Gems Mgmt. Corp., No. 17-cv-9448 (KPF), 2018 WL 1684343, at *4 (S.D.N.Y. Apr. 6, 2018)). Importantly, “[t]he fee applicant must submit adequate documentation supporting the requested attorneys’ fees and costs.” Fisher, 948 F.3d at 600 (citing N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983); McCann v. Coughlin, 698 F.2d 112, 131 (2d Cir. 1983)). “In the Second Circuit, that entails submitting contemporaneous billing records documenting, for each attorney, the date, the hours expended, and the nature of the work done.” Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 336 (S.D.N.Y. 2012) (citations omitted).

Here, Plaintiff retained Lipsky Lowe LLP in connection with this action. (ECF No. 20 at 9.) Two attorneys and one paralegal expended a total of 49.4 hours at the following rates: Douglas Lipsky, a partner with more than 20 years of experience, billed 8.8 hours at an hourly rate of $500; Bayron Flores Tapi, a junior associate, billed 37.5 hours at an hourly rate of $285; and LiAnna Chan, a paralegal with almost 15 years of experience, 8 of which were “specific to employment law,” billed a total of 3.05 hours at an hourly rate of $115 per hour. (ECF No. 20 at 9–10.) Based on these hourly rates and the number of hours worked at each rate, the Court calculates a lodestar amount of $15,438.25. Plaintiff's counsel, however, “seeks only $13,176.80,” which reflects one-third of the net settlement amount, a commonly accepted percentage fee in this Circuit. (ECF No. 20 at 8, 11); Lai v. Journey Preparatory Sch., Inc., No. 19-cv-2970 (CLP), 2022 WL 3327824, at *3 (E.D.N.Y. May 26, 2022) (noting “courts in this Circuit have routinely found an award representing one-third of the settlement amount to be reasonable” (citations omitted)); Kazadavenko, 2022 WL 2467541 at *4 (collecting cases).

Plaintiff's counsel submitted the necessary “contemporaneous billing records” in support of their request for attorneys’ fees. (See ECF No. 20-2, “Billing Records”.) Thus, comparing the “fees generated by the percentage method with those generated by the lodestar method,” including by reviewing the tasks set forth in the Billing records, the Court finds that the hours billed in this case were reasonable in light of the procedural posture of the case. Wal-Mart Stores, 396 F.3d at 121; (See also ECF No. 20 at 11 (noting counsel engaged in “meaningful, but unsuccessful, settlement talks” both before and after filing the lawsuit and “completed meaningful informal discovery” after filing the lawsuit).)

The Court further finds that the rates are reasonable and within the range of hourly rates accepted by other courts in this Circuit. See, e.g. Bevel, 2024 WL 1349010, at *4 (finding $500 per hour reasonable for a solo practitioner who “has practiced law since 2001”); Canales v. Norwich Serv. Station Inc., No. 20-cv-4759 (JMW), 2021 WL 5759727, at *5 (E.D.N.Y. Dec. 3, 2021) (finding an hourly rate of $500 to be reasonable for a named partner); Raiter v. Dessert Palace Bose Inc., No. 21-cv-4410 (CLP), ECF No. 20 at 9 (approving an hourly rate of $275 per hour for Mr. Bayron Flores Tapi in an FLSA case); Trustees of the Pavers & Road Builders Dist. Council Welfare, Pension & Annuity Funds v. Kore Contracting Corp., No. 24-cv-3235, 2025 WL 825049, at *14 (E.D.N.Y. Mar. 14, 2025) (“Courts in this District generally consider hourly rates ranging from $70 to $150 to be reasonable for paralegals.”)

Finally, the remaining Goldberger factors “weigh in favor of finding the award fair and reasonable.” Naraine, 749 F. Supp. 3d at 410; Goldberger, 209 F.3d at 50. The risks of litigation are high as “FLSA claims typically involve complex mixed questions of fact and law,” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 743 (1981), particularly where, as here, the Parties “sharply dispute how many hours Plaintiff worked” and “Defendants strongly deny any discriminatory conduct, especially the discriminatory comments.” (ECF No. 23 at 1.) Moreover, “the public policy goal of encouraging attorneys to take on FLSA and NYLL actions that protect the wages of workers is served here.” Naraine, 749 F. Supp. 3d at 410.

Conclusion

For the reasons set forth above, the Parties’ Joint Motion for Settlement Approval is granted. The Court further finds that Plaintiff's counsel's request for fees and costs to be reasonable and grants an award of $13,176.80 in attorneys’ fees and $350.75 in costs. The Parties are directed to file a stipulation of dismissal in accordance with Federal Rules of Civil Procedure 41 within ten calendar days of the date of this Memorandum and Order.

So ordered.

FOOTNOTES

1.   “Courts evaluate the fairness of a plaintiff's recovery after deducting attorneys’ fees and costs.” Perez v. Ultra Shine Car Wash, Inc., No. 20-cv-782 (KMK), 2021 WL 1964724, at *3 n.5 (S.D.N.Y. May 17, 2021) (citing Arango v. Scotts Co., LLC, No. 17-cv-7174 (KMK), 2020 WL 5898956, at *3 (S.D.N.Y. Oct. 5, 2020); Zorn-Hill v. A2B Taxi LLC, No. 19-cv-1058 (KMK), 2020 WL 5578357, at *4 (S.D.N.Y. Sept. 17, 2020); Garcia v. Cloister Apt Corp., No. 16-cv-5542 (HBP), 2019 WL 1382298, at *2 (S.D.N.Y. Mar. 27, 2019)). Thus, the Court's evaluation of the fairness of the proposed recovery by Plaintiff will be based on $26,353.60.

Kiyo A. Matsumoto United States District Judge Eastern District of New York