LUIS PATRICIO LOPEZ v. SKY CONTRACTORS CORP BENJAMIN LOPEZ AND JHON LOPEZ (2025)

REPORT AND RECOMMENDATION

Plaintiff Luis Patricio Lopez, individually and on behalf of all others similarly situated, filed this action on November 1, 2024, alleging claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. and New York Labor Law (“NYLL”) §§ 650 et seq., against his former employer, J&L Sky Contractors Corp. (“J&L”), and their owners and operators Benjamin Lopez and Jhon Lopez (collectively, “Defendants”). See generally Dkt. No. 1. Plaintiff seeks recovery for Defendants’ failure to pay minimum and overtime wages, remit weekly pay, and to provide wage notices and statements in contravention to the FLSA and NYLL. Id. ¶¶ 47-75.

Currently pending before this Court, on a referral from the Honorable Diane Gujarati, United States District Judge, is Plaintiff's motion for default judgment. See Dkt. No. 25; see also Referral Order dated Mar. 4, 2025.¹

For the reasons set forth below, the undersigned respectfully recommends that Plaintiff's motion be granted in part and denied in part, and that judgment be entered against Defendants, jointly and severally, in the amount of $54,362.22, comprising $15,147.99 in unpaid overtime damages; $12,000.00 in unpaid wage damages; $66.24 in frequency-of-pay violation damages; $27,147.99 in liquidated damages; and post-judgment interest. Additionally, the undersigned respectfully recommends that Plaintiff's sixth and seventh causes of action be dismissed without prejudice.

I. Background

A. Factual Allegations

The following facts—taken from the Complaint, Plaintiff's motion, and the attachments filed in support thereof—are assumed true for the purposes of this motion. See NYQF Inc. v. Sigue Corp., No. 24-CV-3699 (AMD) (JAM), 2025 WL 1142154, at *1-*2 (E.D.N.Y. Apr. 21, 2025) (citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)), report and recommendation adopted, 2025 WL 1303864 (E.D.N.Y. May 6, 2025).

Plaintiff, a resident of Corona, New York, was employed by Defendants at J&L “from in or around October 2021 until in or around December 2023.”² Dkt. No. 1 ¶ 7. J&L is a corporation “organized under the laws of New York” with its principal executive office at 100-12 35th Street in Corona, Queens, New York. Id. ¶ 9. The Complaint alleges that at all pertinent times, J&L was engaged in interstate commerce under the FLSA as defined in 29 U.S.C. § 203(s)(1)(A), with an annual gross sales volume of not less than $500,000. Id. ¶ 18.

Benjamin Lopez and Jhon Lopez own and operate J&L, and are responsible for its day-to-day operations, including decisions involving payroll and personnel management. Id. ¶¶ 11, 13-16. In particular, during the time in question, Benjamin Lopez and Jhon Lopez had “power and authority” over final payroll and personnel decisions, had “the exclusive power to hire and fire employees [of J&L], establish and pay their wages, set their work schedule[s], and maintain their employment records.” Id. ¶¶ 14-16.

In or around October 2021, Defendants hired Plaintiff to work at J&L in a position involving plumbing, painting, window installation, and carpentry, as well as “other miscellaneous duties.” Id. ¶¶ 19-20. Plaintiff regularly worked for J&L six days per week, from approximately 8:00 a.m. to 4:30 p.m., for a typical total of fifty-one hours per week. Id. ¶¶ 21-22. Plaintiff alleges he was paid “a flat daily rate of approximately $200.00 per day for all hours worked” during this period, in violation of statutory overtime pay requirements for work exceeding forty hours a week under the FLSA and the NYLL. Id. ¶¶ 24, 26.

Plaintiff states he was paid weekly from October 2021 to January 2023, consistent with a pay schedule he was informed of at the time of hire. Id. ¶ 25. Beginning in February of 2023, however, Plaintiff contends he began receiving bi-weekly pay, and that “on some occasions” he was only paid once per month. Id. The changes in Plaintiff's pay frequency occurred “without explanation or notice until in or around October 2023.” Id. Additionally, Plaintiff alleges that he was not compensated at all for his final ten weeks of work at J&L, from October of 2023 to December 2023. Id. ¶ 28. These “late and non-payments” led to a “myriad of financial difficulties,” according to Plaintiff, and in particular frustrated his daily expenses like food, utility bills, and transportation costs. Id. ¶ 29.

Plaintiff additionally alleges that Defendants failed to provide the required information about wages and his rights under the law: namely, that he was never provided with a wage notices or accurate and complete statements of hours worked and wages earned throughout his employment. Id. ¶¶ 31-32. Defendants also allegedly “willfully failed to post” conspicuous notices of minimum wage and overtime requirements. Id. ¶ 30. Plaintiff alleges these omissions and failures made it impossible for him to calculate or verify his hours worked, rate of pay, and whether he was paid at overtime rates for hours beyond forty per week. Id. ¶ 33-34.

B. Procedural Background

On November 1, 2024, Plaintiff filed the Complaint. See generally Dkt. No. 1. Plaintiff alleges seven causes of action against Defendants on behalf of himself and putative collective members: (i) failure to pay overtime wages in violation of the FLSA; (ii) failure to pay overtime wages in violation of the NYLL; (iii) failure to pay minimum wages under the FLSA; (iv) failure to pay minimum wages in violation of the NYLL; (v) violation of frequency of pay under the NYLL; (vi) violation of notice and recordkeeping requirements under the NYLL; and (vii) violation of wage statement requirements under the NYLL. Id. ¶¶ 47-75.

Summonses were issued for all Defendants. Dkt. No. 23 ¶ 5. Plaintiff served J&L through delivery to an “authorized agent at the Office of the Secretary of State of New York” on November 13. See Dkt. No. 10. J&L was required to respond to the Complaint in this matter by December 4, 2024. Id.; Dkt. No. 23 ¶ 6.

On December 4, 2024, Plaintiff's process server personally served Benjamin Lopez at his last known residence, providing the summons to an unidentified woman who held herself out to be a “current tenant.” See Dkt. No. 12. Plaintiff provided follow-up service by first-class mail to Benjamin Lopez at the same address two days later, on December 6, 2024. See id. Benjamin Lopez was required to respond to the Complaint in this matter by December 25, 2024. Id.

On November 13 and 15, 2024, at 12:17 p.m. and 7:23 a.m., respectively, Plaintiff's process server attempted service upon Jhon Lopez at his last known address. Dkt. No. 13. The process server, however, was “unable to speak to anyone at the location to verify the place of employment of [Jhon Lopez].” Id. On December 7, 2024, Plaintiff's process server affixed a copy of the civil cover sheet, summons, and the Complaint to the door of the same address as again no person was available to receive them. Id. On December 13, 2024, Plaintiff mailed via certified first-class mail a copy of the same documents to the same address. See id. Jhon Lopez was required to respond to the Complaint in this matter by December 30, 2024. Id.

No answers or responses have been interposed by any Defendant to date. Dkt. No. 23 ¶¶ 6, 9.

On January 27, 2025, Plaintiff requested a certificate of default after being directed to do so by the undersigned. See Dkt. No. 17; Text Order dated Jan. 14, 2025. On January 29, 2025, the Clerk of Court issued a certificate of default against all Defendants, noting they have “failed to answer or otherwise defend this action.” Dkt. No. 18. Plaintiff served all Defendants with copies of the requests for certificates of default and the certificates of default via certified first-class mail on January 30, 2025. See Dkt. No. 19; Dkt. No 23 ¶ 15.

Plaintiff filed the instant motion on February 26, 2025. See Dkt. Nos. 22-25. On March 4, 2025, Judge Gujarati referred the motion to the undersigned. See Order Dated March 4, 2025.

On June 21, 2025, the Court ordered Plaintiff to supplement his motion by addressing a recent amendment to the NYLL impacting the frequency of pay claims under NYLL § 191, as discussed further below. See Order Dated June 21, 2025. Plaintiff responded on June 24, 2025 with proposed revisions to his calculation of damages. See Dkt. Nos. 26, 26-1.

II. Standard for Default Judgment

“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). At the first step, the Clerk of Court enters a party's default after an affidavit or other evidence shows that the “party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a); Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *3 (E.D.N.Y. Sept. 29, 2023) (“[W]hen a party uses an affidavit or other proof to show that a party has ‘failed to plead or otherwise defend’ against an action, the clerk shall enter a default.” (citing Fed. R. Civ. P. 55(a)). “If a claim is for ‘a sum certain or a sum that can be made certain by computation,’ the clerk can enter judgment.” Id. (citing Fed. R. Civ. P. 55(b)(1)).

At the second step, and “[i]n all other cases, the party must apply to the court for a default judgment.” Id. (citing Fed. R. Civ. P. 55(b)(2)). To “enter or effectuate judgment” the 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).

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, 96 (2d Cir. 1993). Nonetheless, in evaluating a motion for default judgment, a court accepts as true the plaintiff's well-pleaded factual allegations, except those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (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. Sept. 1, 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), report and recommendation adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015).

The decision to grant or deny a default motion is “left to the sound discretion of a district court.” Esquivel, 2023 WL 6338666, at *3 (quoting Shah v. New York State Dep't of Civ. Serv., 168 F.3d 610, 615 (2d Cir. 1999)). 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) (quotations and citation omitted). The Court may also “consider numerous factors, including whether 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) (cleaned up), report and recommendation adopted, 2010 WL 3780984 (E.D.N.Y. Sept. 17, 2010). As the Second Circuit has observed, the Court is guided by the same factors which apply to a motion to set aside entry of a default, which include “whether the defendant's default was willful; (2) whether defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.” See Franco, 2010 WL 3780972, at *2 (quoting Mason Tenders Dist. Council v. Duce Constr. Corp., No. 02-CV-9044, 2003 WL 1960584, at *2 (S.D.N.Y. Apr.25, 2003)); Enron Oil Corp., 10 F.3d at 96 (listing factors).

III. 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); see 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. Subject Matter Jurisdiction

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. Plaintiff's first and third causes of action, brought under the FLSA, allege unpaid overtime wages and unpaid wages. Dkt. No. 1 ¶¶ 47-53, 58-61. Nothing in the record suggests that Plaintiff's FLSA claims are immaterial, made solely for the purpose of obtaining jurisdiction, wholly insubstantial, or frivolous. Cf. A&B Alt. Mktg. Inc. v. Int'l Quality Fruit Inc., 35 F.4th 913, 915 n.2 (2d Cir. 2022). This action thus arises under the laws of the United States, which gives the Court subject matter jurisdiction over Plaintiff's first and third causes of action. See, e.g., Rocha v. Bakhter Afghan Halal Kababs, Inc., 44 F. Supp. 3d 337, 345 (E.D.N.Y. 2014) (stating that the FLSA claims arose under the laws of the United States and thus established subject matter jurisdiction); Jimenez v. Green Olive Inc., 744 F. Supp. 3d 221, 239 (E.D.N.Y. 2024) (finding FLSA claims conferred the court with subject matter jurisdiction).

The Court also has supplemental jurisdiction over Plaintiff's second, fourth, and fifth causes of action brought under the NYLL. See Dkt. No. 1 ¶¶ 54-57, 62-69. 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 America v. Gibbs, 383 U.S. 715, 725 (1966)). Claims derive from a common nucleus of operative fact when the facts underlying the claims “substantially overlap[ ].” 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)).

Here, supplemental jurisdiction clearly extends to the second and fourth causes of action, for unpaid overtime wages and unpaid wages (Dkt. No. 1 ¶¶ 54-57, 62-65), because they virtually overlap with Plaintiff's first and third claims seeking recovery for the same violations (and in the case of the first and second claims, do so under analogous FLSA and NYLL causes of action). The fifth claim, for NYLL violations of frequency-of-pay under the NYLL, likewise arises from the same “common nucleus of operative fact” as the FLSA claims as it bears on Plaintiff's compensation from Defendants over the employment timespan in question.

The Court, however, lacks subject matter jurisdiction over Plaintiff's sixth and seventh causes of action, in which Plaintiff alleges violations of notice and record keeping and wage statement requirements. See Dkt. No. 1 at ¶¶ 70-75. In short, Plaintiff lacks standing to pursue these claims in federal court.

Article III of the United States Constitution restricts federal court power to hearing “cases” and “controversies.” U.S. Const. Art. III, § 2, cl. 1. A case or controversy cannot exist if the plaintiff lacks a personal stake, or “standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). “To establish [Article III] 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.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Standing is not “dispensed in gross.” TransUnion, 594 U.S. at 431. Rather, the plaintiff must show standing separately for each claim asserted. Id. “[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.” Dunston v. Piotr & Lucyna LLC, No. 21-CV-6402 (AMD) (SJB), 2023 WL 5806291, at *4 (E.D.N.Y. July 26, 2023) (quoting Tavarez v. Moo Organic Chocolates, LLC, No. 21-CV-9816 (VEC), 2022 WL 3701508, at *4 (S.D.N.Y. Aug. 26, 2022)), report and recommendation adopted, 2023 WL 5806253 (S.D.N.Y. Sept. 7, 2023). “Like all subject matter issues, standing can be raised sua sponte.” Id. (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)).

“[A] plaintiff must establish Article III standing for all of his claims, whether or not the Court also has supplemental jurisdiction.” Guthrie v. Rainbow Fencing Inc., No. 21-CV-5929 (KAM) (RML), 2023 WL 2206568, at *3 (E.D.N.Y. Feb. 24, 2023) (emphasis in original), aff'd, 113 F.4th 300 (2d Cir. 2024). Although a court may hear state claims if they “derive from a common nucleus of operative facts,” a 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.” Id. (internal quotations and citations omitted).

Here, Plaintiff does not allege facts linking any legally cognizable injury that he personally experienced to Defendants’ purported failure to provide wage statements or Defendants’ purported failure to provide Plaintiff with notice of his rate of pay, regular pay day, and such other information, as required by the NYLL. See Beh v. Cmty. Care Companions Inc., No. 19-CV-01417 (JLS) (MJR), 2022 WL 5039391, at *7 (W.D.N.Y. Sept. 29, 2022) (“While the deficiencies in defendants’ provisions of hiring notices may amount to violations of the labor law, neither plaintiffs nor the record demonstrates how those technical violations led to either a tangible injury or something akin to a traditional cause of action, as required by the Supreme Court”), report and recommendation adopted, 2023 WL 1969370 (W.D.N.Y. Jan. 26, 2023). The Complaint instead merely alleges that Defendants failed to comply with these statutory mandates. See Dkt. No. 1 ¶¶ 33-34, 70-75.

Since the Supreme Court issued its decision in TransUnion, “courts throughout the Second Circuit have [ ] found no standing in cases, such as the instant case, where [the p]laintiffs have not established any injury traceable to violation of the wage notice and statement requirements.” Ramirez v. Urion Constr. LLC, 674 F. Supp. 3d 42, 55 (S.D.N.Y. 2023) (collecting cases); see also Lucero v. Shaker Contractors, Corp., No. 21-CV-8675 (LGS), 2023 WL 4936225, at *3 (S.D.N.Y. July 27, 2023) (“Courts in this District have applied TransUnion to find plaintiffs lack standing to bring claims under the NYLL's wage notice and wage statement provisions when those plaintiffs do not make specific allegations of concrete injuries they suffered as a result of their employers’ failure to provide required wage records.”). Plaintiff's theory as to how he was injured by Defendants’ failure to provide the required documents is speculative at best. Although Plaintiff asserts he suffered harm because he was unable to identify his employer and lacked information about his hours, terms, conditions of pay, his hourly rates of pay, he fails to identify any specific and concrete injury caused by these alleged deficiencies. Id. ¶ 33-34. Without concrete allegations of harm, Plaintiff's argument is entirely speculative. See Guthrie v. Rainbow Fencing Inc., 113 F.4th 300, 311 (2d Cir. 2024) (finding that the plaintiff lacked standing to sue for a violation of NYLL section 195 “[w]ithout plausible allegations that he suffered a concrete injury because of [the defendant's] failure to provide the required notices and statement”).

A 2023 decision in this district styled Quieju v. La Jugueria Inc., No. 23-CV-264 (BMC), 2023 WL 3073518 (E.D.N.Y. Apr. 25, 2023) is illustrative here. In Quieju, the plaintiff, a former restaurant worker, alleged that his former employer violated the FLSA and the NYLL by, inter alia, not providing him “with a time-of-hire wage notice nor with the wage statements” under the NYLL. Id. at *1. The court held that the plaintiff was unable to show that he had standing to bring these claims, recognizing the plaintiff's implicit argument “that if [the] defendants had given him the required documents, those documents would have informed him that he was not being paid his required wages.” Id. at *2 (emphasis in original). “Enlightened by that knowledge, [the] plaintiff then would have demanded his required wages. Having made such a demand, [the] defendants would have then paid him his required wages, and [the] plaintiff would have avoided the injury he suffered by the failure to properly pay him.” Id. (emphasis in original). Although the plaintiff in Quieju tried to argue that this implicit analysis demonstrated that the plaintiff had suffered an actual and concrete injury, the court found that “[t]his hypothetical chain of events is not what the Supreme Court means by an ‘injury fairly traceable to the allegedly unlawful conduct.’ ” Id. (quoting California v. Texas, 593 U.S. 659, 668-69 (2021)). The court continued that “[t]he injury that plaintiff suffered (i.e., [the] defendants’ failure to properly pay him) is not an injury he sustained because of a lack of the required documents; it is an injury sustained because his employer violated its obligation to pay minimum wage, overtime, and spread-of-hours pay under other, express requirements of federal and state law.” Id. at *2.

As in Quieju, Plaintiff here has not shown that he suffered a concrete injury resulting from Defendants’ purported violations of the NYLL's wage statement and wage notice requirements. Thus, Plaintiff lacks Article III standing to pursue his sixth and seventh causes of action. See, e.g., Vazquez v. Cousins Grocery & Grill Inc., No. 21-CV-4528 (RML), 2025 WL 1384069, at *9 (E.D.N.Y. May 13, 2025) (finding that the plaintiff's wage notice and statement claims are dismissed for lack of standing); Yunganaula v. D.P. Grp. Gen. Contractors/Devs. Inc., No. 21-CV-2015 (CBA) (MMH), 2024 WL 1342739, at *1 (E.D.N.Y. Mar. 29, 2024) (“Plaintiff lacks standing to pursue his claims that [the defendant] violated the NYLL's wage notice and wage statement provisions because [p]laintiff had not adequately pleaded a tangible injury resulting from [the defendant's] failure to provide the required notices.”); Bayne v. NAPW, Inc., No. 18-CV-3591 (MKB) (MMH), 2024 WL 1254197, at *6 (E.D.N.Y. Mar. 25, 2024); Cao v. Flushing Paris Wedding LLC, No. 20-CV-2336 (RPK) (JAM), 2024 WL 1011162, at *23 (E.D.N.Y. Mar. 9, 2024), report and recommendation adopted, 727 F. Supp. 3d 239 (E.D.N.Y. Mar. 29, 2024); Saavedra v. Dom Music Box Inc., No. 21-CV-6051 (ENV) (JAM), 2024 WL 208303, at *5 (E.D.N.Y. Jan. 19, 2024), report and recommendation adopted, (Text Order dated Mar. 13, 2024); Esquivel, 2023 WL 6338666, at *11 (dismissing the plaintiff's NYLL wage notice and wage statement claims without prejudice); Wang v. XBB, Inc., No. 18-CV-7341 (PKC) (ST), 2022 WL 912592, at *13 (E.D.N.Y. Mar. 29, 2022) (“Plaintiff has not linked any injury-in-fact to [d]efendants’ failure to provide statutory notices under the NYLL, so she lacks standing to recover on that claim.” (citation omitted)); Francisco v. NY Tex Care, Inc., No. 19-CV-1649 (PKC) (ST), 2022 WL 900603, at *7 (E.D.N.Y. Mar. 28, 2022) (“While those may be technical violations of the NYLL, neither [p]laintiff nor the record demonstrate how those technical violations led to either a tangible injury or something akin to a traditional cause of action.”).

Because Plaintiff lacks standing, the Court lacks subject matter jurisdiction over his wage notice and wage statement claims under the NYLL. Accordingly, the undersigned respectfully recommends that Plaintiff's sixth and seventh causes of action be dismissed without prejudice.

B. Personal Jurisdiction

“[B]efore a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010) (citation omitted); see also BASF Corp. v. Original Fender Mender, Inc., No. 23-CV-2796, 2023 WL 8853704, at *5 (E.D.N.Y. Dec. 22, 2023) (“A court may not enter default judgment unless it has jurisdiction over the person of the party against whom the judgment is sought, which also means that he must have been effectively served with process.” (internal quotations and citation omitted)), report and recommendation adopted, (Text Order dated Jan. 9, 2024).

Here, the Court has personal jurisdiction over Defendants. First, Plaintiff properly served J&L, a New York company, by delivering copies of the summons and Complaint to the New York Secretary of State. See Dkt. No. 10; see also Fed. R. Civ. P. 4(h)(1)(A); N.Y. C.P.L.R. § 311(a)(1); N.Y. Bus. Corp. Law § 306(b)(1). Plaintiff also properly served Benjamin Lopez and Jhon Lopez by personal service. See Dkt. Nos. 12, 13; see also Fed R. Civ. P. 4(e)(1)-e(2)(A); N.Y. C.P.L.R. § 308(1). “[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.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (quoting Fed. R. Civ. P. 4(k)(1)(A)).

Second, New York State has general jurisdiction over its residents. See Brown v. Lockheed Martin Corp., 814 F.3d 619, 622 n.1 (2d Cir. 2016) (“A state has [ ] general jurisdiction over its residents.”). J&L is a New York corporation with its principal place of business in Corona, Queens, New York. See Dkt. No. 1 ¶ 9. New York courts may exercise jurisdiction over corporations formed under its laws and operating within the state. See 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. Sept. 7, 2018) (citing Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014)); see also N.Y. C.P.L.R. § 301. New York courts may also exercise jurisdiction over non-domiciliary corporations or individuals “who transact[ ] business within the state” so long as “the cause of action arises from that transaction.” Id. (quoting Licci, 673 F.3d at 60). Benjamin Lopez and Jhon Lopez “own [and] operate” and “oversee[ ] the daily operations of” J&L, exerting final authority over personnel and payroll decisions, and therefore transact business in New York. See Dkt. No. 1 ¶¶ 11, 13-16.

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

C. 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, Plaintiff asserts that venue is proper in the Eastern District of New York because “a substantial part of the events or omissions giving rise to the claims occurred in this [D]istrict.” Dkt. No. 1 ¶ 5.

Accordingly, the undersigned respectfully recommends a finding that venue is proper in this district under 28 U.S.C. § 1391(b)(2).

IV. 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 Engineers, Loc. 15, 15A, 15C & 15D 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)). “[L]ocal 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. Osmeña, No. 22-CV-7491 (RPK) (CLP), 2023 WL 7000935, at *2 (E.D.N.Y. Aug. 15, 2023) (internal quotations and citation omitted).

A. Service of Process

The Court finds that Plaintiff properly served the Summons and Complaint on each Defendant. Federal Rule of Civil Procedure 4(e)(1) permits a party to effect service in accordance with the rules of the state where the district is located or where service is made. Fed. R. Civ. P. 4(e)(1). As to the Corporate Defendant, state law permits a party to effect service by delivering the summons and complaint to the New York Secretary of State as an agent of the corporation. N.Y. Bus. Corp. Law § 306(b)(1). Here, Plaintiff served J&L with notice of this action by his process server delivering the summons and Complaint to an agent in the Office of the Secretary of State authorized to accept service for J&L. See Dkt. No. 10 at 1. Thus, Plaintiff properly served J&L.

As to Benjamin Lopez, state law permits a party to effect service by (1) delivering the summons within the state to a person of suitable age and discretion at the usual place of abode or dwelling place of the person to be served and (2) mailing the summons by first class mail to the person to be served at his or her last known residence, so long as the delivery and mailing occur within twenty days of each other. N.Y. C.P.L.R. § 308(2). Here, Plaintiff served Benjamin Lopez with notice of this action by his process server delivering the summons and Complaint to Mr. Lopez's usual place of abode and last known address at 108-10 35th Avenue, Apt. 1F, Corona, Queens, New York 11368, and leaving those documents with a person of suitable age and discretion. Dkt. No 23-3. Plaintiff's process server also mailed a copy of the summons and Complaint by first class mail to the same address. Id. Thus, Plaintiff properly served Benjamin Lopez.

As to Jhon Lopez, when personal service cannot be effected by attempting with due diligence the above method, state law permits a party to effect service by (1) affixing the summons to the door of the party's dwelling place or usual place of abode, and (2) mailing the summons by first class mail to the person to be served at his or her last known residence, subject to the same twenty day limit as the standard process. N.Y. C.P.L.R. § 308(4). Here, following two prior visits to Jhon Lopez's usual place of abode during which no person of suitable age and discretion was available to accept service, Plaintiff served Jhon Lopez with notice of this action by his process server affixing a true copy of the documents to the door of his usual place of abode and last known address at 109-32 112th St. Fl 2, South Ozone Park, Queens, NY 11420. Dkt. No. 23-4. Plaintiff's process server also mailed a copy of the summons and Complaint by first class mail to the same address within the twenty-day limit. Id. Thus, Plaintiff properly served Jhon Lopez.

B. Entry of Default

The Court next finds that the Clerk of Court properly issued a certificate of default as to each defendant. Because J&L was served on November 13, 2024, it was required to answer or otherwise respond to the Complaint by December 4, 2024. See Dkt. No. 23 ¶ 6; Dkt. No. 10; see also Fed. R. Civ. P. 12(a)(1)(A)(i). Because Benjamin Lopez was served on December 4, 2024, he was required to answer or otherwise respond to the Complaint by December 25, 2024. See Dkt. No. 23 ¶¶ 7, 9; Dkt. No. 12; see also Fed. R. Civ. P. 12(a)(1)(A)(i). And because Jhon Lopez was served on December 7, 2024, he was required to answer or otherwise respond to the Complaint by December 30, 2024. See Dkt. No. 23 ¶¶ 8-9; Dkt. No. 13; see also Fed. R. Civ. P. 12(a)(1)(A)(i). When Defendants failed to do so, Plaintiff requested that the Clerk of the Court issue certificates of default. Dkt. No. 17.

On January 29, 2025, the Clerk of Court—noting that the three Defendants “have not filed an answer or otherwise moved with respect to the Complaint herein”—properly entered a notation of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Dkt. No. 18. Accordingly, the Clerk's entry of default in this case was proper.

C. Local Civil Rules 7.1 and 55.2

Local Civil Rule 7.1 requires that a plaintiff attach to a motion for default (1) a notice of motion specifying the applicable rules or statutes pursuant to which the motion is brought; (2) a memorandum of law setting forth the cases and other authorities relied upon in support of the motion; and (3) supporting affidavits and exhibits containing any factual information and portions of the record necessary for the decision of the motion. See L. Civ. R. 7.1. Plaintiff complied with the procedural requirement set forth in Local Civil Rule 7.1 by filing a notice of motion (Dkt. No. 22), a memorandum of law (Dkt. No. 24), and affidavits and exhibits (Dkt. Nos. 23-1 to 23-11) in support of the motion. Local Civil Rule 55.2(b) requires that a plaintiff attach to a motion for default judgment the Clerk's certificate of default, a copy of the Complaint, and a proposed form of default judgment. L. Civ. R. 55.2(b). Local Civil Rule 55.2(c) also requires that all papers submitted in connection with a motion for a default judgment be mailed to the “last known residence of such party (if an individual) or the last known business address of such party (if a person other than an individual).” L. Civ. R. 55.2(b)-(c).

Per Local Civil Rule 55.2(b), Plaintiff has attached to his motion for default judgment the Clerk's certificates of default, a copy of the Complaint, and a proposed form of default judgment. Dkt. Nos. 23-7, 23-1, 23-11. Per Local Civil Rule 55.2(c), Plaintiff has mailed all papers submitted in connection with the motion for a default judgment to the “last known business address” of J&L, and the “last known residence[s]” of Benjamin Lopez and Jhon Lopez. Dkt. No. 25.

Accordingly, the undersigned respectfully recommends that the Court find that Plaintiff has satisfied the jurisdictional requirements to proceed with its motion under Local Civil Rules 7.1 and 55.2.

D. Compliance with the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (“SCRA”) requires a plaintiff seeking default judgment to “file with the court an affidavit stating whether or not the defendant is in military service and showing necessary facts to support the affidavit.” 50 U.S.C. § 3931; see also Windward Bora, LLC v. Ortiz, No. 21-CV-04154 (MKB) (JMW), 2022 WL 3648622, at *5 (E.D.N.Y. July 5, 2022) (noting that such an affidavit is absolutely mandatory), report and recommendation adopted, 2022 WL 3647586 (E.D.N.Y. Aug. 24, 2022). “The non-military affidavit must be based not only on an investigation conducted after the commencement of an action or proceeding but also after a default in appearance by the party against whom the default judgment is to be entered.” Apex Mar. Co. v. Furniture, Inc., No. 11-CV-5365 (ENV) (RER), 2012 WL 1901266, at *1 (E.D.N.Y. May 18, 2012) (citation omitted).

Here, Plaintiff has complied with this requirement and submitted confirmation that Benjamin Lopez and Jhon Lopez are not, nor have ever been reported as being, in active duty at any point since this suit was commenced. See Dkt. Nos. 23-5, 23-6.

Accordingly, the undersigned respectfully recommends that the Court find that Plaintiff has satisfied the jurisdictional requirements to proceed with his motion.

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. See Rodriguez v. Queens Convenience Deli Corp., No. 09-CV-1089 (KAM) (SMG), 2011 WL 4962397, at *2 (E.D.N.Y. Oct. 18, 2011). “The FLSA and the NYLL have different statutes of limitations.” Chen, 2023 WL 2583856, at *8. “The FLSA statute of limitations 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.’ ” Id. (quoting 29 U.S.C. § 255(a)). “When a defendant defaults, the violation is considered ‘willful’ and the three-year statute of limitations applies.” Rodriguez, 2011 WL 4962397, at *2 (citing Blue v. Finest Guard Servs., Inc., No. 09-CV-133 (ARR), 2010 WL 2927398, at *11 (E.D.N.Y. June 24, 2010), report and recommendation adopted, 2010 WL 2927403 (E.D.N.Y. July 19, 2010)). Under the NYLL, the statute of limitations is six years. See N.Y. Lab. Law § 663(3). “Courts have held that for the purposes of establishing the statute of limitations under FLSA, a new cause of action accrues with each payday following an allegedly unlawful pay period.” Shu Qin Xu v. Wai Mei Ho, 111 F. Supp. 3d 274, 278 (E.D.N.Y. 2015) (quoting Addison v. Reitman Blacktop Inc., 283 F.R.D. 74, 81 (E.D.N.Y.2011)); see also 29 C.F.R. § 790.21(b) (“[A] cause of action ․ for unpaid minimum wages or unpaid overtime compensation and for liquidated damages ‘accrues’ when the employer fails to pay the required compensation for any workweek at the regular pay day.”).

Here, Plaintiff commenced this action on November 1, 2024. See Dkt. No. 1. Plaintiff was “employed by Defendants at J&L ․ from in or around October 2021 until in or around December 2023.” Dkt. No. 1 ¶ 19. In light of Defendants’ default and the resulting presumption that any violations of the FLSA were “willful,” Plaintiff may therefore recover under the FLSA for any claims that accrued starting on November 1, 2021, and under the NYLL for the entire period of his employment.

B. The Employment Relationship under 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.” Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296 (1985) (quotations and citation omitted). To plead a cause of action under the FLSA, Plaintiff must establish: (1) that the defaulting defendants are employers subject to the FLSA; (2) the plaintiff is an employee within the meaning of the FLSA; (3) that the plaintiff's employment relationships were not exempted from the statute; and (4) a violation of one of the statute's provisions. See Rowe v. CC Rest. & Bakery, Inc., No. 17-CV-01423 (CBA) (PK), 2019 WL 4395158, at *4 (E.D.N.Y. Aug. 15, 2019) (listing elements), report and recommendation adopted, 2019 WL 4393987 (E.D.N.Y. Sept. 13, 2019).

1. Whether Defendants 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.” 29 U.S.C. § 203(d). The term “person” in this definition may be an “individual” or “any organized group of persons,” including corporations. 29 U.S.C. § 203(a). 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. 29 U.S.C. §§ 206(a), 207(a).³

“To be an ‘enterprise engaged in commerce,’ the defendant-employer must have (a) an annual gross sales volume of at least $500,000, and (b) ‘employees handling, selling or otherwise working on goods or materials that have been moving in or produced for commerce by any person.’ ” Brito v. Marina's Bakery Corp., No. 19-CV-828 (KAM) (MMH), 2022 WL 875099, at *7 (E.D.N.Y. Mar. 24, 2022) (quoting 29 U.S.C. § 203(s)(1)(A)(i)-(ii)); see also Vazquez, 2025 WL 1384069, at *2 (E.D.N.Y. May 13, 2025) (“the question of whether a defendant qualifies as an enterprise under the FLSA is not a jurisdictional issue, but an element that a plaintiff must establish in order to prove liability.”). “[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.” 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) (citation omitted), report and recommendation adopted, 2018 WL 1559762 (E.D.N.Y. Mar. 31, 2018).

a. J&L

“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 Marine v. Vieja Quisqueya Rest. Corp., No. 20-CV-4671 (PKC) (RML), 2022 WL 17820084, at *3 (E.D.N.Y. Sept. 8, 2022) (“[F]or employees to be covered by the FLSA, they must show either that their employer was an enterprise engaged in interstate commerce or that their work as employees regularly involved them in interstate commerce[.]”). The enterprise coverage test considers whether the employer “has employees engaged in commerce or in the production of goods for commerce, or [ ] has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and ․ whose annual gross volume of sales made or business done is not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)-(ii); see also 29 U.S.C. § 203(b) (defining “commerce” as “trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof”).

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.” Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 121 (E.D.N.Y. 2011) (“[T]he test is met if [the] [p]laintiffs merely handled supplies or equipment that originated out-of-state[.]” (quotations and citation omitted)). The individual coverage test considers the “employment actions” of each plaintiff to determine whether “the employees themselves are ‘engaged in commerce.’ ” Rowe, 2019 WL 4395158, at *4 (citation omitted).

Here, Plaintiff alleges that J&L is an employer under the FLSA because it falls under the enterprise coverage standard. Plaintiff, however, fails to provide any specific examples of goods or materials handled by J&L's employees that were involved in interstate commerce. See Dkt. No. 1 ¶ 18, Dkt. No. 23-9 ¶¶ 6-7. Nevertheless, as discussed below, Plaintiff's allegations satisfy the enterprise coverage test.

Plaintiff alleges that J&L “has had an annual gross volume of sales of not less than $500,000” and that its employees are or have been “engaged in commerce or in the production of goods for commerce, and handle, sell or otherwise work on goods or material that have been moved in or produced for commerce.” Dkt. No. 1 ¶ 18. Plaintiff also alleges in his affidavit, filed in support of his motion, that J&L purchased and imported into New York “all materials, goods, supplies, and products through channels of interstate commerce.” Dkt. No. 23-9 ¶¶ 6-7.

Although these allegations are conclusory on their face, “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.” Marine, 2022 WL 17820084, at *3 (collecting cases). Indeed, it is reasonable to infer that J&L, a construction business, engaged in interstate commerce given the nature of the trade. Tzilin v. Jimmy G Constr. Corp., No. 23-CV-4047 (ENV) (MMH), 2024 WL 4309775, at *6 (“[C]ourts in this District have routinely inferred, even absent specific allegations, that companies engaged in the construction industry are engaged in interstate commerce.”) (internal citations omitted); see also Kilmchak v. Cardona, Inc., No. 09-CV-4311 (MKB) (ARL), 2014 WL 3778964, at *5 (E.D.N.Y. Jul. 31, 2014) (holding that an inference that construction workers “handled goods and materials that moved in interstate commerce” was justified).

Plaintiff therefore has sufficiently alleged that he was employed by an “enterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C. § 203(s)(1).

b. Benjamin Lopez and Jhon Lopez

As for Benjamin Lopez and Jhon Lopez, “[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)). “[T]o be an ‘employer,’ an individual defendant must possess control over a company's actual ‘operations’ in a manner that relates to a plaintiff's employment.” Irizarry, 722 F.3d at 109. “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.” Id. at 110.

In determining whether an individual is an “employer,” the Court is guided by the “economic reality” test set forth in Carter v. Dutchess Community College. See 735 F.2d 8, 12 (2d Cir. 1984) (citing Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28 (1961)). 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 quotations and citations omitted); see also Vasquez v. Bolla Operating L.I. Corp., No. 22-CV-7014-NCM-ST, 2025 WL 1029391, at *4 (E.D.N.Y. Feb. 25, 2025) (“Courts routinely hold that allegations that ‘closely track’ the test's factors ․ are adequate to establish that an individual defendant is an ‘employer.’ ”), report and recommendation adopted, 2025 WL 957555 (E.D.N.Y. Mar. 31, 2025); Tapia, 906 F.3d at 61 (applying the Carter factors to determine individual liability under the FLSA). “The ‘economic reality’ test encompasses the totality of circumstances, no one of which is exclusive.” Irizarry, 722 F.3d at 106 (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)); 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.”).

Plaintiff alleges that during the time of his employment, Benjamin Lopez and Jhon Lopez jointly owned and operated J&L. Dkt. No. 1 ¶ 11. The Complaint asserts that Benjamin Lopez and Jhon Lopez were “responsible for overseeing [J&L's] daily operations” and had “power and authority” over personnel and payroll decisions, including “the exclusive power to hire and fire employees [working for J&L], establish and pay their wages, set their work schedule, and maintain their employment records, including [Plaintiff].” Dkt. No. 1 ¶¶ 12-16. Accordingly, Plaintiff's allegations are sufficient to establish both Benjamin Lopez and Jhon Lopez as employers for the purposes of the FLSA. See Carter, 735 F.2d at 12.

2. 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 he was employed by Defendants and provided work as “a plumber, painter, window installer and carpenter, while performing other miscellaneous duties.” See Dkt. No. 1 ¶¶ 19-20. 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-*6 (E.D.N.Y. Aug. 16, 2019) (determining that the plaintiff was an “employee” under the FLSA for entry of default judgment because the complaint alleged that he was employed by defendants), report and recommendation adopted, 2020 WL 1270891 (E.D.N.Y. Mar. 17, 2020). Accordingly, Plaintiff is a covered employee under the FLSA.

3. Whether any FLSA 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 v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 32 (E.D.N.Y. 2015). 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 Distributors, Inc., 300 F.3d 217, 222 (2d Cir. 2002) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 394 n.11 (1960)).

Here, because Defendants are in default, they have failed to sufficiently invoke any exemptions. See Borja v. MSK Rest. Corp., No. 22-CV-6178 (EK) (VMS), 2025 WL 951402, at *12 (E.D.N.Y. Mar. 13, 2025), report and recommendation adopted, 2025 WL 948122 (E.D.N.Y. Mar. 29, 2025); Ore v. H & C Cleaning Corp., No. 22-CV-20 (AMD) (RER), 2022 WL 19520879, at *9 (E.D.N.Y. Dec. 14, 2022) (“In defaulting, Defendants have failed to invoke any exemptions.”). “On a motion for a default judgment, therefore, 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). Thus, the undersigned respectfully recommends that Plaintiff be found a non-exempt employee under the FLSA based on Defendants’ default.

Moreover, Plaintiff does not allege any facts that would make him exempt under the FLSA or NYLL. See Dkt. No. 1. In fact, Plaintiff's description of his “primary duties” at J&L—consisting of various types of construction work (id. ¶ 20)—suggest he would be non-exempt in any event, even in the absence of a default. See, e.g., Bocon v. 419 Manhattan Ave. LLC, No. 23-CV-3502 (PKC) (MMH), 2025 WL 832730, at *7 (E.D.N.Y. Mar. 18, 2025) (finding that the plaintiff, a construction worker, was a non-exempt employee under the FLSA “as a matter of law”); Romero v. Floris Constr., Inc., No. 16-CV-04282 (PKC) (RLM), 2017 WL 5592681, at *5 (E.D.N.Y. Nov. 20, 2017) (“Construction workers are non-exempt employees under the FLSA.” (citation omitted)).

Therefore, none of the statutory exemptions under the FLSA serve to bar recovery in Plaintiff's case.

C. Employee Relationship under 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 v. Ms. Wine Shop Inc., 643 F. Supp. 3d 355, 368-69 (E.D.N.Y. 2022) (quoting Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 360 (E.D.N.Y. 2015)); see also N.Y. Lab. Law § 650 et seq.; 12 N.Y.C.R.R. § 142-2.2. “Unlike the FLSA, 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.” Garcia v. Badyna, No. 13-CV-4021 (RRM) (CLP), 2014 WL 4728287, at *6 (E.D.N.Y. Sept. 23, 2014). Otherwise, the NYLL's definition of “employer” is “nearly identical” to that of the FLSA, and the analysis of the employment relationship under both statutes is based on the same factors. See Mahoney v. Amekk Corp., No. 14-CV-4131 (ENV) (VMS), 2016 WL 6585810, at *9 (E.D.N.Y. Sept. 30, 2016) (collecting cases holding that the FLSA and NYLL are interpreted consistently with one another on the question of employer status), report and recommendation adopted, 2016 WL 6601445 (E.D.N.Y. Nov. 7, 2016); Tzilin, 2024 WL 4309775, at *8 (“Under the New York Labor Law, 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.” (citation omitted)).

***

Because the NYLL's definition of “employer” is coextensive with the FLSA's definition, Bocon, 2025 WL 832730, at *7, Defendants are Plaintiff's employers within the meaning of the NYLL, and the NYLL applies to the instant dispute.

D. Joint and Several Liability

Plaintiff alleges that Defendants are individually and jointly liable for the FLSA and NYLL violations. Dkt. No. 1 ¶¶ 53, 57, 61, 65, 69, 72, 75. “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.” Fermin, 93 F. Supp. 3d at 37 (collecting cases); see, e.g., Cavalotti v. Daddyo's BBQ, Inc., No. 15-CV-6469 (PKC) (VMS), 2018 WL 5456654, at *11 (E.D.N.Y. Sept. 8, 2018) (“As the Court has found that [the corporate defendant] and [the individual defendant] were jointly [the] [p]laintiff's employers, each [d]efendant is jointly and severally liable under the FLSA and the NYLL for any FLSA and NYLL damages award made in [the] [p]laintiff's favor”); Pineda v. Masonry Const., 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, was sufficient to qualify him as an FLSA and an NYLL employer, and to impose joint and several liability with corporate defendant for wage law violations); Shim v. Millennium Grp., LLC, No. 08-CV-4022 (FB) (VVP), 2010 WL 409949, at *1 (E.D.N.Y. Jan. 27, 2010) (finding both the individual defendants and the corporation to be liable under the FLSA on default judgment where the complaint contained allegations of actions taken collectively by the defendants); Moon v. Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002) (holding that a corporate officer who is considered an employer under the FLSA is jointly and severally liable along with the corporation).

Accordingly, the undersigned finds that Defendants are jointly and severally liable for Plaintiff's claims.

E. Overtime Claims

Plaintiff seeks reimbursement for the overtime wages that he should have received pursuant to the FLSA and NYLL. See Dkt. No. 1 ¶¶ 47–57. 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)). 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 workweek.” 12 N.Y.C.R.R. § 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). “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).

Here, Plaintiff sufficiently alleges that Defendants failed to pay him the requisite overtime pay. As noted above, Plaintiff alleges that from October 2021 through December 2023, he “regularly worked a schedule of shifts beginning from approximately 8:00 a.m. each workday and regularly ending at approximately 4:30 p.m., six (6) days per week,” which totaled around “fifty-one (51) hours per week.” Dkt. No. 1 ¶¶ 21-23. During this time, Plaintiff claims that Defendants paid him a flat rate of “approximately $200 per day” without consideration of the overtime premium for hours worked over 40 per week. Id. ¶¶ 24, 26.

Although Plaintiff had agreed to this flat rate of pay for a workweek which regularly exceeded 40 hours (id. ¶¶ 22, 24), there is no indication that his weekly salary already encompassed the mandatory premium for overtime hours. See Giles v. City of N.Y., 41 F. Supp. 2d 308, 316-17 (S.D.N.Y. 1999) (citing Adams v. Dep't of Juvenile Justice, 143 F.3d 61, 67 (2d Cir.1998)) (“The fact that an employee regularly works 60 or more hours does not, without more, indicate that the employee's weekly salary was intended to include the FLSA overtime premium for all hours in excess of 40.”). Rather, “[t]here is a rebuttable presumption that an employer's payment of a weekly salary represents compensation for the first 40 hours of an employee's work-week; the burden is on the employer to rebut this presumption with evidence that the employer and employee had an agreement that the employee's weekly compensation would cover a different number of hours.” Berrios v. Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 385 (E.D.N.Y. 2012) (quoting Jiao v. Shi Ya Chen, No. 03-CV-165 (DF), 2007 WL 4944767, at *13 (S.D.N.Y. Mar. 30, 2007)). Having defaulted, Defendants have failed to rebut the presumption that Plaintiff's flat-rate salary was not mutually agreed to include overtime pay and instead accounted only for the first 40 hours worked per week.

Plaintiff's allegations are therefore sufficient to establish Defendants’ liability for failure to pay overtime under both the FLSA and the NYLL. See Martinez v. Golden Flow Dairy Farms Inc., No. 21-CV-2421 (ENV) (MMH), 2024 WL 1242639, at *6 (E.D.N.Y. Mar. 22, 2024) (finding that the plaintiff sufficiently alleged an overtime pay based on allegations that the defendant had a policy and practice of failing to compensate for all hours worked in excess of forty hours per week at the proper overtime rate); Newman v. West Bar & Lounge, Inc., No. 20-CV-1141 (KAM) (RER), 2021 WL 2401176, at *7 (E.D.N.Y. June 11, 2021) (finding that the plaintiff's sworn statement estimating his schedule and pay established he worked over 40 hours a week without time-and-a-half compensation and subjected the defendants to liability on default).

Accordingly, the undersigned respectfully recommends that Defendants be found liable for failure to pay Plaintiff overtime wages under both the FLSA and the NYLL.

F. Unpaid Wage Claims

Plaintiff seeks reimbursement for unpaid wages for “approximately ten” weeks at the end of his employment with J&L under the FLSA and NYLL, from October 2023 to December 2023, during which he alleges he received no pay whatsoever for the time he worked. See Dkt. No. 1 ¶¶ 28, 58-65.

A plaintiff has the burden to prove that he was improperly compensated for the work he performed, and that the defendant had actual or constructive knowledge of such work. Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011). If the defendant has defaulted, however, the court may presume that the plaintiff's recollection and estimates of the hours he worked are accurate, as “an employer's duty under the FLSA to maintain accurate records of its employees’ hours is non-delegable.” Id. at 363; see Cabrera v. Canela, 412 F. Supp. 3d 167, 181 (E.D.N.Y. 2019) (“As a preliminary matter, when an employer fails to maintain accurate records or where, as here, no records have been produced as a consequence of a defendant's default, courts have held that the plaintiff[’s] recollection and estimates of hours worked are presumed to be correct.” (internal quotations and citations omitted)).

Here, and because Defendants have defaulted, it would be unfair to require Plaintiff to submit substantial proof of improper compensation given Defendant's non-participation in the instant litigation and Plaintiff inability to obtain the relevant employment records through discovery. See Cabrera, 412 F. Supp. 3d at 181; Hart v. Rick's Cabaret Int'l, Inc., 60 F. Supp. 3d 447, 466 (S.D.N.Y. 2014) (“It would be manifestly unfair to allow employers to avoid, or reduce, their liability simply because they kept shoddy records.”).

The Complaint's allegations are therefore sufficient to establish Defendants’ liability for the unpaid wages. Accordingly, the undersigned respectfully recommends that Defendants be found liable for the unpaid wages claim.

G. Frequency of Pay Claim

Plaintiff also seeks to recover based on a violation of the frequency-of-pay requirements under NYLL § 191. Dkt. No. 1 ¶ 66-69. That provision requires that “manual worker[s] ․ be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned.” N.Y. Lab. Law § 191(a)(i). Plaintiff contends that starting “in or around February 2023” and until the end of his employment in October of 2023, he was paid on a bi-weekly basis and, “in some occasions,” on a monthly basis. See Dkt. No. 1 ¶ 25. Plaintiff later revised his claim to reflect a consist bi-weekly pay schedule for the period. See Dkt. No. 24 at 6; Dkt. No. 26-1.

A “manual worker” for the purposes of Section 191(a) is “a mechanic, workingman or laborer.” N.Y. Lab. Law § 190(4). “More helpfully, the New York Department of Labor has long interpreted the term to include ‘employees who spend more than 25 percent of their working time performing physical labor.’ ” Cooke v. Frank Brunckhorst Co., LLC, 734 F. Supp. 3d 206, 215 (E.D.N.Y. 2024) (quoting N.Y. Dep't of Labor Opinion Letter, No. RO-09-0066 (May 21, 2009)). The statute's broad definition includes many classes of workers, such as “carpentry workers, cooks, wait staff, grocery store employees, janitorial staff, hotel maids, airport chauffeurs, and pizzeria workers.” Id. (citing Beh, 2021 WL 3914287, at *3). Plaintiff's description of his principal work at J&L—plumbing, painting, window installation, and carpentry—is thus sufficient to establish he is a manual worker subject to the weekly pay period requirement of Section 191(a)(i).

Whether a violation of the frequency-of-pay requirements of NYLL § 191(a)(i) confers a private right of action in cases where Plaintiff has been paid in full, albeit on a schedule which conflicts with the statutory requirements, has been a contentious topic in state courts, subject to a split between the First and Second Departments of the New York Appellate Division. See Zachary v. BG Retail, LLC, 716 F. Supp. 3d 339, 347-49 (S.D.N.Y. 2024) (collecting cases); compare Vega v. CM & Assocs. Constr. Mgmt., LLC, 107 N.Y.S.3d 286 (N.Y. App. Div. 2019) (First Department) (holding that bi-weekly pay of a manual laborer constituted “underpayment” for purposes of the statute and conferred a private right of action), with Grant v. Global Aircraft Dispatch, Inc., 204 N.Y.S.3d 117 (N.Y. App. Div. 2024) (Second Department) (holding NYLL Sections 191 and 198 conferred no private right of action for bi-weekly payments to a manual worker).

“The clear weight of authority among district courts in the Second Circuit is aligned with the conclusion in Vega that there is an implied private right of action to enforce Section 191.” Charles v. United States of Aritzia Inc., No. 23-CV-09389 (MMG), 2024 WL 4167502, at *5-*6 (S.D.N.Y. Sept. 12, 2024) (surveying law). Indeed, almost “every New York court in the Second Circuit ha[d] adopted [Vega’s] holding” in concluding that the NYLL confers a private right of action to collect liquidated damages for payments which do not follow the statutory schedule of Section 191, even those which are ultimately made in full. See Gamboa v. Regeneron Pharm., Inc., 719 F. Supp. 3d 349, 354 (S.D.N.Y. 2024) (collecting cases).

On May 9, 2025, the New York Legislature clarified the matter with an amendment to Section 198(a-1) (the “May 9, 2025 Amendment”), which was written to “take effect immediately and shall apply to causes of action pending or commenced on or after such date.” Act of May 9, 2025, Ch. 56, 2025 N.Y. Laws S. 3006-C. As amended, NYLL § 198(a-1) now explicitly states that it provides a private cause of action for violations of Section 191(a), although “liquidated damages shall not be applicable to violations ․ where the employer paid the employee wages on a regular payday, no less frequently than semi-monthly” provided the employer has not previously been found liable for similar violations following the enactment of the Amendment. N.Y. Lab. Law §§ 198(a-1).

Although the May 9, 2025 Amendment postdates the filing of the Complaint on November 1, 2024 (see Dkt. No. 1), the amended Section 198(a-1) still applies.⁴ Plaintiff's allegation that he was paid on a bi-weekly basis is therefore sufficient to establish Defendants’ liability for frequency-of-pay violations. See Pesantez v. SADKME Constr. Corp., No. 23-CV-4271 (OEM) (SJB), 2024 WL 4314945, at *5 (E.D.N.Y. Aug. 19, 2024) (finding that, in the default judgment context, the defendants were liable for a frequency-of-pay claim under NYLL § 191).

Accordingly, the undersigned respectfully recommends a finding that Defendants be found liable for the frequency-of-pay violations alleged in the Complaint.

H. Wage Statement and Notice Violations

“Pursuant to the New York Wage Theft Protection Act (‘WTPA’), an employer must provide its employees, at the time of hiring, a written notice containing, inter alia, ‘the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances;’ ‘the regular pay day designated by the employer;’ and the employer's address and telephone number.” Tzilin, 2024 WL 4309775, at * (quoting N.Y. Lab. Law § 195(1)(a)). “The WTPA also requires employers to provide employees with a statement with every payment of wages, listing various information including the dates of work covered by the payment, information identifying the employer and employee, details regarding the rate of pay and the overtime rate of pay, and the number of hours worked.” Id. (quoting N.Y. Lab. Law § 195(3)).

As discussed above in Part III.A, the undersigned respectfully recommends that Plaintiffs’ claims for Defendants’ alleged violations of the NYLL's wage notice and wage statement provisions be dismissed for lack of standing.

I. Collective Action Certification

The Complaint states that Plaintiff seeks to prosecute this action as a FLSA Collective Action. See Dkt. No. 1 ¶¶ 35-46. The FLSA authorizes employees to sue on behalf of themselves and all other similarly situated employees. 29 U.S.C. § 216(b). To join in the action, other employees must “opt in” by written consent. Id. In the Second Circuit, if the plaintiff makes a factual showing that he and the potential opt-in plaintiffs were victims of a common unlawful policy or plan, the court conditionally certifies the action as a FLSA collective action by sending notice to potential plaintiffs who may be similarly situated. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010) (“the district courts of this Circuit appear to have coalesced around a two-step method ․ not required by the terms of FLSA or the Supreme Court's cases”). After those plaintiffs have opted in, the court determines whether they are in fact similarly situated to the named plaintiff. Id.

Since Plaintiff did not reiterate his collective action certification request in his Motion for Default Judgment, the Court considers that request waived. See, e.g., Cooper v. Fire & Ice Trucking, Corp., No. 23-CV-1675 (KAM) (TAM), 2024 WL 3344001, at *9 (E.D.N.Y. July 9, 2024) (“Because Plaintiff did not reiterate his collective action certification request in his Motion for Default Judgment, the Court considers the collective action abandoned.”); Galicia v. 63-68 Diner Corp., No. 13-CV-3689 (PKC) (RLM), 2015 WL 1469279, at *1 (E.D.N.Y. Mar. 30, 2015) (“Because Plaintiff now seeks a default judgment and has not reiterated his request for collective action in the present motion, the Court considers Plaintiff's collective action request waived.”); Zabrodin v. Silk 222, Inc., 22-CV-7064 (KAM) (MMH), 2023 WL 8009319, at *10 (E.D.N.Y. Nov. 20, 2023) (finding that the plaintiff waived a collective action certification request by failing to reiterate this request in the motion for default judgment).

Accordingly, this Report and Recommendation only addresses damages with respect to the named Plaintiff.

VI. Damages

As Defendants’ liability has been established, the Court turns to evaluate 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, Inc., 973 F.2d at 158. “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) (quotations and citation omitted). “That being said, because under FLSA the 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) (quotations and citation omitted), report and recommendation adopted, 2018 WL 1770555 (E.D.N.Y. Apr. 12, 2018).

As described below, Plaintiff seeks damages for unpaid overtime and unpaid wages under the FLSA and NYLL, frequency-of-pay violations under the NYLL, and wage statement and notice violations under the NYLL,⁵ as well as liquidated damages, attorneys’ fees, and costs.

A. Overtime Pay

“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. Nam v. Ichiba Inc., No. 19-CV-1222 (KAM), 2021 WL 878743, at *6 (E.D.N.Y. Mar. 9, 2021); see 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2.

The amount of unpaid overtime wages is calculated by subtracting the amount Plaintiff was actually paid from the amount that he should have been paid under the FLSA and NYLL. See, e.g., Cooper, 2024 WL 3344001, at *10-*11 (performing a similar overtime damage calculation). 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. 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.

To obtain the total overtime compensation owed for each period, the weekly amount owed is multiplied by the number of weeks in that period. Id. Any weekly hours worked in excess of forty (40) are multiplied by the applicable overtime wage rate—1.5 times the applicable wage ⁶ —and added to the amount of regular wages.

Here, Plaintiff alleges that he worked for Defendants “from in or around October 2021 until in or around December 2023.” Dkt. No. 1 ¶ 19. Plaintiff fails to offer a more precise start or end date in his Complaint or affidavit filed support of default judgment (See id., Dkt. No. 23-9), but in his calculation of damages seeks recovery for an employment period from October 1, 2021 to December 31, 2023. See Dkt. Nos. 23-10, 26-1. Accepting Plaintiff's inference as reasonable, October 1, 2021 and December 31, 2023 will be considered the start and end dates, respectively, for Plaintiff's employment. Although the statute of limitations bars recovery under the FLSA for his time worked prior to November 1, 2021, the entire period of Plaintiff's employment is recoverable under the NYLL, as discussed in Section VI.A above.

Plaintiff further alleges he worked “approximately” from 8:00 AM to 4:30 PM, six days a week, for a total of 51 hours per week, and was paid a flat rate of $200 per day for all hours worked. See Dkt. No. 1 ¶¶ 21-24. Because he received a flat daily rate of $200, Plaintiff's hourly wage was $23.53.⁷ See Ferreira v. Brooklyn's Constructions & Designs Inc., No. 22-CV-03796 (MKB) (VMS), 2024 WL 5386542, at *13 (E.D.N.Y. Mar. 15, 2024) (calculating hourly rate by dividing employee's daily flat sum payment by the number of hours the employee worked); Diaz v. AJE Management Corp., No. 15-CV-1602 (AT) (JCF), 2017 WL 746439, at *3 (S.D.N.Y. Jan. 10, 2017) (performing the same calculation).

Plaintiff is entitled to the difference between what he was paid ($23.53 per hour) and what he was owed for overtime compensation ($35.30 per hour, or 1.5 times his hourly rate). Multiplying the overtime premium ($11.77) by the number of hours in excess of forty that Plaintiff worked each week (11, as he alleges working 51 hours per week) and the number of complete weeks at issue (117 ⁸ ), the Court concludes that Plaintiff is owed $15,147.99 for the period of October 1, 2021 through December 31, 2023.

The Court's calculations for unpaid overtime wages for Plaintiff are as follows:

Tabular or graphical material not displayable at this time.

 ⁹

Accordingly, this Court respectfully recommends that Plaintiff is awarded $15,147.99 in unpaid overtime wages.

B. Unpaid Wages Under the FLSA and NYLL

Plaintiff also seeks to recover unpaid wages for the ten-week period between October 22, 2023 and December 31, 2023 under both the FLSA and NYLL. See Dkt. No. 1 ¶¶ 28, 58-65; Dkt. No. 23-10 (containing calculation of Plaintiff's dates of employment). The causes of action and the resulting calculations under the FLSA and NYLL are not directly analogous, as are the unpaid overtime claims; the FLSA claim, under 28 U.S.C. § 206(a), relates to the federal minimum wage requirement, while the NYLL claim, under Section 191, concerns timely payment of agreed-upon wages. See 28 U.S.C. § 206(a), N.Y. Lab. Law § 191.

1. FLSA Minimum Wage Claim

In evaluating Defendants’ liability for unpaid minimum wages under the FLSA, this Court first must establish the applicable minimum wage during the period in question. “Section 206 of the FLSA sets forth a minimum hourly wage employers must pay their employees who engage in work affecting interstate commerce.” Santillan v. Henao, 822 F. Supp. 2d 284, 291 (E.D.N.Y. 2011) (citing 29 U.S.C. § 206(a)(1)(C)). At all times relevant to this case, the federal minimum wage was $7.25 per hour. See 29 U.S.C. § 206(a)(1)(C).

Plaintiff, however, is “not entitled to recover for the same injury twice” where the Court has determined Defendants’ liability under both the FLSA and the NYLL. Charvac v. M & T Project Managers of New York, Inc., No. 12-CV-05637 (CBA) (RER), 2015 WL 5475531, at *4 (E.D.N.Y. June 17, 2015) (citing Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08-CV-3725 (DC), 2010 WL 4159391, at *2 n. 2 (S.D.N.Y. Sept.30, 2010)), report and recommendation adopted, 2015 WL 5518348 (E.D.N.Y. Sept. 17, 2015). “[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. (quoting Jiao v. Shi Ya Chen, No. 03-CV-0165 (DF), 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30, 2007)). As discussed below, because Plaintiff's claim under the NYLL provides for highest recovery of damages, the Court need not make a determinative finding of Plaintiff's FLSA damages.¹⁰

2. NYLL Unpaid Wage Claim

Plaintiff also brings a claim under the NYLL for the same unpaid wages, under “Article 6” of the Labor Law. Dkt. No. 1 ¶ 64. Section 191 of the NYLL requires that employees be paid in a timely manner. N.Y. Lab. Law § 198(1-a). The section further provides that a “wage claim” action by employees who were “paid less than the wage to which they are entitled” allows claimants “to recover the full amount of any underpayment.” Id. Under the NYLL, therefore, Plaintiff is entitled to the full amount of his agreed-upon, standard wage ($200 per day) for the ten-week period between October 22, 2023 and December 31, 2023 during which he did not receive payment for his work. Multiplying his daily wage of $200 by the six days per week he worked and ten weeks he was not paid, the undersigned recommends a finding that the NYLL entitles Plaintiff to $12,000 for his unpaid wage claim.

No overtime premium is included in this calculation: not only does Plaintiff's unpaid overtime claim account for this period already, but NYLL § 191 does not permit recovery of statutory damages such as unpaid overtime. See Myers, 624 F.3d at 545 n.1 (“New York courts have suggested that plaintiffs may not use Labor Law § 191 to seek unpaid wages to which they claim to be entitled under a statute; rather § 191 guarantees only that the wages the employer and employee have ‘agreed’ upon be paid in a ‘timely’ manner again according to the “terms of [the employee's] employment.” (citing Jara v. Strong Steel Door, Inc., No. 14643/05, 20 Misc.3d 1135, 2008 WL 3823769, at *11-*12 (N.Y. Sup. Ct. Aug. 15, 2008))).

3. Assessment of Unpaid Wages

Because Plaintiff cannot recover under both the FLSA and NYLL for the same injury, the Court calculates damages under the NYLL, which provides for the greatest recovery. See Charvac, 2015 WL 5475531, at *4; Diaz v. Rene French Cleaners, Inc., No. 20-CV-3848 (RRM) (RER), 2022 WL 4646866, at *6 (E.D.N.Y. Aug. 29, 2022) (“Plaintiffs have established Defendants’ liability under both the FLSA and the NYLL, but plaintiffs are not entitled to recover twice for the same injury․ [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.” (internal quotations and citations omitted)), report and recommendation adopted, 2022 WL 4662247 (E.D.N.Y. Sept. 30, 2022). The Court's calculation for unpaid wages for Plaintiff, therefore, are as follows:

Tabular or graphical material not displayable at this time.

 ¹¹

Accordingly, this Court respectfully recommends that Plaintiff is awarded $12,000.00 in unpaid wages for the final ten weeks of his employment.

C. Frequency of Pay Claim

Plaintiff also seeks to recover damages under the NYLL for violation of Section 191, based on his pay schedule being changed from weekly to bi-weekly “in or around February 2023.” See Dkt. No. 1 ¶ 25. In the Complaint, Plaintiff alleges, without further specificity, that on “some” occasions he was paid only once per month. Dkt. No. 1 ¶ 25. But this allegation is not renewed in Plaintiff's motion or supporting memorandum of law, which instead asserts simply that “Defendants paid Plaintiff on a bi-weekly basis [sic] failing to timely pay Plaintiff for his first weeks of wages for the period of February 2023 to October 2023.” Dkt. No. 24 at 6. Likewise, the revised calculation of damages—filed by Plaintiff on June 24, 2025 in response to the Court's order—is based on a consistent bi-weekly pay schedule. See Dkt. No. 26-1.

Consequently, the undersigned's calculation of damages will be based on a consistent bi-weekly pay schedule during the period in question, in concordance with Plaintiff's submissions in support of his motion. Id.; see Dkt. No. 24 at 6; cf. Am. Reliable Ins. Co. v. Rohme, No. 2:13-CV-54, 2014 WL 201597, at *1 (E.D.N.C. Jan. 16, 2014) (holding that when there exist discrepancies between damages supported by the complaint and subsequent motions, “the judgment award shall be the lesser amount”); NewGen, LLC v. Safe Cig, LLC, No. 12-CV-09112 (RGK) (JCGx), 2013 WL 12124081, at *5 (C.D. Cal. May 10, 2013) (accepting the plaintiff's subsequent calculation of damages lower than that supported by allegations in original complaint), aff'd, 840 F.3d 606 (9th Cir. 2016).

Under NYLL § 198(a), for violations preceding the enactment of the May 9, 2025 Amendment, damages are limited to “no more than one hundred percent of the lost interest found to be due for the delayed payment of wages calculated using a daily interest rate for each day payment is late based on the annual rate of interest then in effect” in cases “where the employer paid the employee wages on a regular payday, no less frequently than semi-monthly.” N.Y. Lab. Law § 198(a) (as amended 2025). Since the violations in this case occurred prior to the amendment (i.e. between February 2023 to October 2023) and because Plaintiff alleges he was paid “on a bi-weekly basis” during this period (Dkt. No. 24 at 6; see Dkt. Nos. 26, 26-1), the formula in the May 9, 2025 Amendment will be used for calculation of damages for the NYLL frequency-of-pay violation.

Plaintiff's period of receiving pay on a bi-weekly basis will be considered to begin on February 12, 2023, and end on October 22, 2023.¹² Presumably, Plaintiff's bi-weekly paychecks ended when he stopped receiving any pay for his work at all; Plaintiff alleges that he was not paid for the last ten-weeks of employment with Defendants—October 22, 2023 through December 31, 2023, as discussed in Part IV.B above. Because February 12, 2023 as a calculation start date avoids any fractional weeks in calculating damages and remains close to the midpoint of the month (see Ayala, 2016 WL 5092588, at *2 n.5), the date serves as a reasonable starting point for the bi-weekly pay schedule calculations. Cf. Avalon Risk Mgmt. Ins. Agency, LLC v. Rossano, No. 12-CV-3934 (LGS) (DF), 2016 WL 2851435, at *6 (S.D.N.Y. Mar. 31, 2016)) (“Where a plaintiff does not provide an exact date from which interest should be calculated, however, courts have broad discretion in choosing a reasonable date.”), report and recommendation adopted 2016 WL 2851334 (S.D.N.Y. May 12, 2016); see also Hernandez v. Jrpac Inc., No. 14-CV-4176 (PAE), 2016 WL 3248493, at *33 (E.D.N.Y. Apr 26, 2013) (exercising discretion in choosing a start date for employment calculations when only a month is provided); Ayala v. Your Favorite Auto Repair & Diagnostic Ctr., Inc., No. 14-CV-5269 (ARR) (JO), 2016 WL 5092588, at *2 n.5 (E.D.N.Y. Sept. 19, 2016) (using the midpoint of a given month as the start of employment); Poplawski v. Metroplex on the Atlantics, LLC, No. 11-CV-3765 (JBW) (RER), 2013 WL 12438839, at *8 (E.D.N.Y. Apr. 3, 2013) (“The midpoint of that month is used to calculate his damages because no exact start date is given.”), report and recommendation adopted, 2013 WL 12438843 (E.D.N.Y. Apr. 26, 2013). Between the selected dates, there are 36 weeks during which Plaintiff was allegedly paid only bi-weekly. Given that the NYLL requires a weekly pay schedule for manual workers, half of Plaintiff's payments during this period were one week late. See N.Y. Lab. Law § 191(a).

The NYLL requires the interest rate to compute these damages be the one “prescribed by the superintendent of financial services pursuant to section [14-A] of the banking law.” Id. At the time of the violations, that rate was 16% per annum. N.Y. Banking Law § 14-a(1); see also N.Y. Banking Law § 14-a(5) (“Whenever reference is made ․ in any other law ․ to the rate of interest prescribed or to be prescribed by the superintendent pursuant to this section ․ such reference shall be deemed a reference to the rate of interest prescribed in subdivision one of this section.”).

For each week of late payments during the bi-weekly pay period, Plaintiff is entitled to the per diem interest rate (0.0438/100 ¹³ ) multiplied by the pay due weekly (his daily pay of $200 multiplied by 6 days worked per week, or $1,200) multiplied by the number of days the payment was overdue (7), for a total of $3.68 per week.¹⁴ See generally 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) (outlining a similar calculation for pre-judgment interest), report and recommendation adopted, 2023 WL 8021460 (E.D.N.Y. Nov. 20, 2023); Perez v. E.P.E. Enter. Corp., No. 22-CV-6353 (Gujarati, J.) (Reyes, M.J.), 2023 WL 7000934, at *8 (E.D.N.Y. Aug. 29, 2023) (explaining a similar interest calculation).

Over the period of 36 weeks between February 12, 2023 and October 22, 2023, therefore, Plaintiff is entitled to $3.68 per week multiplied by the number of weeks payment was late (18, i.e. half of 36 ¹⁵ ), for a total of $66.24. The undersigned's calculations for damages from violations of NYLL § 191(a), therefore, are as follows:

Tabular or graphical material not displayable at this time.

 ¹⁶

Accordingly, this Court respectfully recommends that Plaintiff is awarded $66.24 in unpaid interest for violations of NYLL's frequency-of-pay provisions.

D. 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. See 29 U.S.C. §§ 216(b), 260; N.Y. Lab. Law § 663(1). A plaintiff may not recover “duplicative” liquidated damages (i.e., under both the FLSA and NYLL) for the same course of conduct. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (“We therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages for the same course of conduct.”). Courts may, however, decline to award liquidated damages where employers “show[ ] to the satisfaction of the court” that they acted in good faith and reasonably believed they did not violate the FLSA. See 29 U.S.C. § 260.

The NYLL similarly permits employees to recover “an additional amount as liquidated damages equal to one hundred percent of the total of such underpayments found to be due” unless the employer provides “a good faith basis to believe that its underpayment of wages was in compliance with the law.” N.Y. Lab. Law § 663(1). Because “there are no meaningful differences” between the liquidated damages provisions of the FLSA and NYLL, the Second Circuit has interpreted the two statutes “as not allowing duplicative liquidated damages for the same course of conduct.” Rana, 887 F.3d at 123. “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.” 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) (quotations and citation omitted).

Here, Plaintiff's recovery for liquidated damages is the same under both the FLSA and the NYLL. Moreover, in light of Defendants’ default, Defendants have failed to make a showing of good faith. See Lu Nan Fan v. Jenny & Richard's Inc., No. 17-CV-6963 (WFK), 2019 WL 1549033, at *11 (E.D.N.Y. Feb. 22, 2019) (“As a result of defendants’ default in this action, the record is devoid of evidence of their good faith or reasonable belief.”), report and recommendation adopted, 2019 WL 1547256 (E.D.N.Y. Apr. 9, 2019); Peralta v. M & O Iron Works, Inc., No. 12-CV-3179 (ARR) (RLM), 2014 WL 988835, at *10 (E.D.N.Y. Mar. 12, 2014) (“Obviously, as a result of [the] defendants’ default in this action, the record is devoid of evidence of [the] defendants’ good faith or reasonable belief. Therefore, the Court recommends that liquidated damages be awarded under the FLSA.”); Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 91 (E.D.N.Y. 2012) (“Where, as here, a defendant employer has defaulted, the court plainly cannot find that it has made the showing of good faith necessary to defeat an award of liquidated damages.”). Plaintiff is therefore entitled to 100 percent of his overtime pay and unpaid wages damages as liquidated damages.

Although Plaintiff originally sought liquidated damages for the violations of the NYLL frequency-of-pay requirements, the NYLL does not provide for liquidated damages for violations of Section 191(a) if the employee is paid “on a regular payday, no less frequently than semi-monthly” and the employer has not previously been convicted for equivalent violations of the law following the passage of the May 9, 2025 Amendment. N.Y. Lab. Law § 198(a-1). Since Plaintiff's claims rest only on a bi-weekly pay schedule (see Dkt. No. 24 at 6; Dkt. Nos. 26, 26-1), no liquidated damages for the Section 191(a) violations are available. Moreover, Plaintiff indicated in his June 24, 2025 letter that he withdrew his prior request for liquidated damages for the NYLL frequency-of-pay violations in light of the amendment. See Dkt. No. 26.

Thus, as Plaintiff's total eligible compensatory damages are $27,147.99 ($15,147.99 in unpaid overtime damages plus $12,000.00 in unpaid wage damages), this Court respectfully recommends that Plaintiff recover “an additional equal amount as liquidated damages” in the amount of $27,147.99. See Rodriguez, 784 F. Supp. 2d at 125.

E. Attorneys’ Fees and Costs

“Both the FLSA and NYLL are fee-shifting statutes which entitle a plaintiff to an award of reasonable attorneys’ fees and costs in wage-and-hour actions.” 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); see 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1).

In his Complaint, Plaintiff had requested such an award of attorneys’ fees and costs. See Dkt. No. 1 at 10. In the instant motion, however, Plaintiff has not renewed that request, nor has he provided in any of the filings in support of his motion the mandatory documentation required in the Second Circuit to support an award of attorneys’ fees. See Dkt. No. 23; see also N.Y. Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983) (establishing a requirement for clear, contemporaneous documentation to support a request for attorneys’ fees). Plaintiff's proposed order for default judgment attached to his motion does contain a brief, nonspecific reference to attorneys’ fees without specifying a number. Dkt. No. 23-11 at 4. Plaintiff's passing reference to attorneys’ fees is insufficient to support such an award. See Mihelis v. Network Com. Serv., Inc., No. CV 11-2215 (WFK) (ARL), 2014 WL 4828875, at *6 (E.D.N.Y. Aug. 8, 2014) (denying award when complaint and affidavit for default judgment request attorneys’ fees, but provide neither a specific number nor any supporting documentation), report and recommendation adopted, 2014 WL 4829062 (E.D.N.Y. Sept. 29, 2014); Garden City Boxing Club, Inc. v. Puebla's Grocery, Inc., No. 06-CV-4735 (CBA) (RML), 2007 WL 4243219, at *6 (E.D.N.Y. Nov. 29, 2007) (collecting cases where attorneys’ fees were denied based on an absence of supporting documentation).

In any event, Plaintiff's June 24, 2025 letter expressly abandons his former request for attorney's fees and costs. Dkt. No. 26 at 1 (“Plaintiff is not seeking attorney's fees and costs in the instant motion.”). As a result, Plaintiff's request for attorneys’ fees and costs should therefore be deemed abandoned. See Mulligan Funding LLC v. Tommy Interior Contracting Corp., 741 F. Supp. 3d 1, 16 (E.D.N.Y. 2024) (considering a request for attorneys’ fees and costs abandoned when, while present in the complaint, it is absent from the plaintiff's memorandum of law and other filings); Time Inc. Retail v. Newsways Servs., Inc., No. 16-CV-9479 (VSB) (JLC), 2018 WL 316995, at *4 (S.D.N.Y. Jan. 8, 2018) (deeming abandoned requests in complaint for attorneys’ fees, costs, and pre-judgment interest where the plaintiff failed to provide legal or documentary support for the requests in its motion for default judgment), report and recommendation adopted, 2018 WL 2332067 (S.D.N.Y. May 22, 2018); Melgadejo v. S & D Fruits & Vegetables Inc., No. 12-CV-6852 (RA) (HBP), 2015 WL 10353140, at *2 n.1 (S.D.N.Y. Oct. 23, 2015) (deeming abandoned requests in complaint for pre and post-judgment interest and damages for conversion where the plaintiff did “not seek recovery for these items” in his damages submission), report and recommendation adopted, 2016 WL 554843 (S.D.N.Y. Feb. 9, 2016).

Accordingly, the undersigned respectfully recommends that Plaintiff be awarded no attorneys’ fees or costs.

F. Pre-judgment Interest

Although the Complaint contains a demand for pre-judgment interest (Dkt. No. 1 at 10), Plaintiff's motion for default judgment does not seek such relief. See Dkt. Nos. 23-24. Because Plaintiff does not advance an argument in support of his request for pre-judgment interest, the Court finds that Plaintiff has abandoned this claim. See Zepeda v. Halftime Bar & Grill Corp., No. 22-CV-2355 (JMA) (SIL), 2023 WL 266504, at *2 (E.D.N.Y. Jan. 18, 2023) (“The [c]ourt does not award [the p]laintiff prejudgment interest because, while she requested prejudgment interest in the operative [c]omplaint, she appears to have abandoned that request in the instant default judgment motion.”); BASF Corp. v. Prime Auto Collision Inc., No. 20-CV-4797 (NGG) (RLM), 2022 WL 704127, at *8 (E.D.N.Y. Mar. 9, 2022) (“Although the [c]omplaint requests pre-judgment interest, ․ [the] plaintiff's motion for default judgment fails to request pre-judgment interest, ․ and its [p]roposed [j]udgment reflects an amount that does not include any pre-judgment interest ․ The [c]ourt therefore recommends that no pre-judgment interest be awarded to [the] plaintiff.”); Arch Specialty Ins. Co. v. Canbert Inc., No. 19-CV-5920 (EK) (PK), 2021 WL 1200329, at *3 n.3 (E.D.N.Y. Mar. 9, 2021) (recommending that claim asserted in complaint but “not discussed in the [m]otion” for default judgment be deemed abandoned), report and recommendation adopted, 2021 WL 1193004 (E.D.N.Y. Mar. 30, 2021); Vicedomini v. A.A. Luxury Limo Inc., No. 18-CV-7467 (LDH) (RLM), 2019 WL 12338298, at *9 (E.D.N.Y. Dec. 6, 2019) (recommending that the district judge not award prejudgment interest, attorneys’ fees, or costs, because requests for such relief in the complaint were not renewed in plaintiff's motion for default judgment), report and recommendation adopted, 2020 WL 9814086 (E.D.N.Y. Mar. 13, 2020); Maldonado v. Landzign Corp., No. 15-CV-3054 (DRH) (GRB), 2016 WL 4186815, at *4 n.3 (E.D.N.Y. July 14, 2016) (request for pre-judgment interest “deemed abandoned” where made in the complaint but not in papers supporting motion for default), report and recommendation adopted, 2016 WL 4186982 (E.D.N.Y. Aug. 8, 2016); Bd. of Trs. of Pointers, Cleaners & Caulkers Annuity Fund, Pension Fund & Welfare Fund v. Harbor Island Contracting, Inc., No. 13-CV-6075 (MKB), 2015 WL 1245963, at *2, n.1 (E.D.N.Y. Mar. 16, 2015) (“The [t]rustees do not pursue this relief in their motion for default judgment, and thus the [c]ourt deems this request abandoned.”).

Accordingly, this Court respectfully recommends that Plaintiff be awarded no pre-judgment interest.

G. Post-judgment Interest

Plaintiff is entitled to post-judgment interest under 28 U.S.C. § 1961(a). “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.” Duffy v. Oyster Bay Indus., Inc., No. 10-CV-3205 (ADS) (ETB), 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011) (citing 28 U.S.C. § 1961(a)), report and recommendation adopted, 2011 WL 2259749 (E.D.N.Y. June 2, 2011); see also Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case).

Under the statute, 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 week preceding[ ] the date of the judgment.” Cabrera, 412 F. Supp. 3d at 186 (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 Fermin, 93 F. Supp. 3d at 52.

VII. Conclusion

For the reasons set forth above, the undersigned respectfully recommends that Plaintiff's motion be granted in part and denied in part, and that judgment be entered against Defendants, jointly and severally, in the amount of $54,362.22, comprising $15,147.99 in unpaid overtime damages; $12,000.00 in unpaid wage damages; $66.24 in frequency-of-pay violation damages; and $27,147.99 in liquidated damages; plus post-judgment interest. Additionally, the undersigned respectfully recommends that Plaintiff's sixth and seventh causes of action be dismissed without prejudice.

A copy of this Report and Recommendation is being electronically served on counsel. This Court directs Plaintiff's counsel to serve a copy of this Report and Recommendation by overnight mail and first-class mail to Defendants and to file proof of service on ECF by July 8, 2025. Copies shall be served at the following addresses:

J&L Sky Contractors Corp.

Attn: Benjamin Lopez and Jhon Lopez

100-12 35th Street

Corona, Queens, NY 11368

Benjamin Lopez

108-10 35th Avenue, Apt. 1F

Corona, Queens, NY 11368

Jhon Lopez

109-32 112th St., Fl 2

South Ozone Park, Queens, NY 11420

Any objections to this Report and Recommendation must be filed within 14 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 Gujarati. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives appellate review of a decision in a magistrate judge's Report and Recommendation if the party fails to file timely objections designating the particular issue.”); Kotlyarsky v. United States Dep't of Just., No. 22-2750, 2023 WL 7648618, at *1 (2d Cir. Nov. 15, 2023) (holding “the record is clear” that failure to object to an R&R forfeits claims on appeal); see generally Thomas v. Arn, 474 U.S. 140 (1985) (ruling that the practice is Constitutionally valid).

SO ORDERED.

FOOTNOTES

1.   Michael Meyer, a judicial intern who is a second-year law student at Brooklyn Law School, is gratefully acknowledged for his assistance in the research of this Report and Recommendation.

2.   Although the Complaint and the motion for default judgment fail to specify Plaintiff's specific dates of employment with Defendants, the damages calculation he submitted in support of his motion indicates he was employed by J&L from “October 1, 2021 to December 31, 2023.” Dkt. No. 23-10 at 1.

3.   The NYLL lacks this 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. Apr. 1, 2008)).

4.   Although statutes or amendments are generally presumed not to apply retroactively, there is a concurrent principle that courts must apply the law as it exists at the time of the decision. See U.S. v. Alcan Aluminum Corp., 990 F.2d 711, 724 (2d Cir. 1993) (“There is a strong presumption against the retrospective application of a statute․ Yet, [ ] a court should apply law existing at the time of its decision unless to do so is contrary to the plain meaning of a statute or would cause manifest injustice.”). “When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive.” Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994). Courts additionally defer to “clear expression[s] of legislative intent as to whether [the act in question] applies to cases arising before the [a]ct's passage.” Id. at 244; see also Chan v. Gantner, 464 F.3d 289, 293 (2d Cir. 2006) (“[S]tatutes may and should be retroactively applied when the statute at issue clearly indicates that it is intended to be retroactive”). Given the clear legislative language that the May 9, 2025 Amendment “shall apply to causes of action pending” at the time of its passage, and the fact that it only clarifies the extent of available relief, the Court finds that the amended NYLL § 198(a-1) applies in this case.

5.   Because Plaintiff lacks standing to pursue claims for NYLL § 195(1) and § 195(3), Plaintiff is not entitled to statutory damages for these claims. See Guthrie, 2022 WL 18999832, at *6 (finding that plaintiff “failed to establish standing for the wage notice and statements claims and thus is not entitled to statutory damages”). The undersigned will therefore not address those claims for damages.

6.   “The FLSA provides that overtime pay should be calculated based on the employee's regular rate of pay or the minimum wage, whichever is greater.” Martinez v. Alimentos Saludables Corp., No. 16-CV-1997 (DLI) (CLP), 2017 WL 5033650, at *16 (E.D.N.Y. Sept. 22, 2017) (citing 29 U.S.C. § 207; 29 C.F.R. § 778.107). “New York law also requires that employees be compensated at “one and one-half times the employee's regular rate of pay” and provides that the regular rate should be calculated “in the manner and methods provided in” the FLSA.” Id. (citing 12 N.Y.C.C.R.R. § 142-2.2.).

7.   (200 [daily rate] × 6 [days worked per week]) / 51 [hours worked per week] = 23.53.

8.   Plaintiff's damages calculation computes damages over “117.29 weeks” in this range. Dkt. No. 23-10 at 1. As his claim for failure to pay overtime pay is based on his work in excess of 40 hours per week. however, the final partial week would not produce damages because it would not constitute a work week of over 40 hours that might entitle Plaintiff to overtime pay.

9.   $11.77 [overtime premium] × 11 [hours over 40 per week] × 117 [complete weeks] = $15,147.99.

10.   Under 28 U.S.C. § 206(a), Plaintiff would be entitled to a minimum wage of $7.25 multiplied by his hours per week (51) for the ten weeks during which he did not receive any pay (Dkt. No. 1 ¶ 28 (claiming unpaid work weeks from October 2023 to December 2023)), for a total of $3,697.50. If Plaintiff were to recover under the FLSA, the overtime calculation above would also need to be adjusted to account for his actual earned wage for the final ten weeks of his work, since the overtime attributed to him during that time would be based on a minimum wage claim rather than his standard daily rate.

11.   $200 [regular daily rate] × 6 [days worked per week] × 10 [weeks worked] = $12,000.

12.   Although Plaintiff's Complaint and affidavit offer no more than month ranges, Plaintiff's damages calculation seeks to recover for this violation for the period of February 1, 2023 to October 31, 2023. See Dkt. No. 26-1. His damages calculation thus conflicts with his ten final weeks of work being unpaid, and its use would lead to recovery for both unpaid wages and pay frequency violations for the final 11 days of October. See id. The inferred dates from Plaintiff's calculation of damages will therefore not be used for the purposes of calculating his frequency-of-pay damages.

13.   The per diem interest rate is computed by dividing the per annum interest rate (16%) by the number of days in the year (365). See Gesualdi v. RRZ Trucking Co., LLC, No. CV 03-3449 ETB, 2011 WL 1988374, at *6 n.13 (E.D.N.Y. May 20, 2011). Here, that amount is equal to .000438.

14.   Plaintiff's damages calculation on this claim relies on an unrounded weekly interest rate, rather than using the per diem rate directly, but produces the same $3.68 per week amount due ($1200 × 0.003068493). See Dkt. No. 26-1 at 1.

15.   Plaintiff's revised damages calculation generally uses the same approach. See Dkt. No. 26-1. In multiplying by the total number of weeks in the proposed date range, however, Plaintiff mistakenly treats every paycheck in this period as being one week late. See id. Had Defendants followed the Section 191(a) pay schedule, in any bi-weekly period Plaintiff would have received one check for $1,200 in the first week, and one check for $1,200 in the second week. Instead. Plaintiff allegedly received, effectively, two checks for $1,200 on the second week. Each bi-weekly pay period therefore consists of one on-time week's pay and one which is a week late; in other words, only half the payments in this time frame were statutorily late.

16.   $3.68 [interest due per bi-weekly pay period, i.e., $1,200 [regular weekly rate] × 0.000438 [interest rate due per diem] × 7 [days payments were overdue]] × 18 [weeks payments were late] = $66.24

JOSEPH A. MARUTOLLO United States Magistrate Judge