ALISON SCHLANGER v. 12710 KITCHEN CORP JAGDEI THAKURDEEN CHAND SINGH (2026)

REPORT AND RECOMMENDATION

Plaintiff Alison Schlanger (“Plaintiff”) commenced this action against Defendants 12710 Kitchen Corp., Jagdei Thakurdeen, and John Doe Defendant No. 1 on October 9, 2023. See generally Compl., ECF 1. On August 27, 2024, Plaintiff filed an amended complaint, replacing the John Doe Defendant with Defendant Chand Singh.¹ See generally Am. Compl., ECF 17. Plaintiff alleges various claims, including violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the New York Labor Law (“NYLL”), Art. 6 § 190 et seq., and retaliatory termination under the FLSA, 29 U.S.C. § 215. Id. ¶¶ 2–4.

After nearly two years of litigating this case in fits and starts, as discussed below, Plaintiff moved for a default judgment on September 23, 2025. Mot. for Default J. (“Mot.”), ECF 47; Mem. in Supp. of Default J. (“Mem.”), ECF 47-1. On October 1, 2025, the Clerk of Court certified the default of all named Defendants, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. Clerk's Entry of Default, ECF 52. For the reasons set forth below, this Court recommends that Plaintiff's motion be granted and that a default judgment be entered.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Factual Background

In the amended complaint, Plaintiff alleges that, on or around October 16, 2022, she was hired “to work as a kitchen prep and chef” at a restaurant and nightclub operated by Defendants called Xscape NYC, located at 12710 Liberty Avenue, South Richmond Hill, New York, 11419. Am. Compl., ECF 17, ¶¶ 1, 14. Plaintiff claims she was hired by Defendants Singh and Thakurdeen. Id. ¶ 14. Plaintiff worked at Xscape NYC until on or around January 17, 2023. Id. ¶ 15.

Plaintiff claims that she was the only employee who worked in the kitchen of Xscape NYC, and that there were approximately six to seven employees working at the establishment. Id. ¶¶ 16–17. Plaintiff asserts that, in addition to her work as a kitchen prep and chef, she was responsible for “bartending, cross-training, making drinks, serving customers, running tables, cleaning, taking orders, hosting and seating customers, [and] cleaning the restaurant,” if the restaurant was busy and understaffed. Id. ¶ 18.

In the first week of her employment, Plaintiff contends that she worked seven days, from 5:30 p.m. to 4:00 a.m., for a total of approximately 73.5 hours. Id. ¶ 19. After her first week, Plaintiff asserts that she worked “a fixed schedule of five days a week, from Wednesday to Sunday,” working from about 6:00 p.m. to between 4:00 and 4:30 a.m. each day. Id. ¶ 20. During Plaintiff's employment she claims that she was paid between $720–725 “per week for five shifts” via check. Id. ¶¶ 21–22. Plaintiff alleges that she “did not clock in and out to track her work hours” because Defendants did not set up such a system for her. Id. ¶ 23. Plaintiff further asserts that she observed that Xscape NYC automatically charged customers a 30% service fee and that Plaintiff “received no tips even though she would serve customers.” Id. ¶¶ 24–25. Additionally, Plaintiff claims that “Defendants failed to pay [her] the required overtime rate of time and one-half, despite the fact that she regularly worked between 60 and 70 hours per week.” Id. ¶ 29.

Plaintiff alleges that during the entirety of her employment, “Defendants failed to provide her with an annual wage notice or period wage statements that accurately reflected her rate of pay, her pay days, and her hours.” Id. ¶ 30. She further alleges that “[b]ecause of Defendants’ improper compensation policies, Plaintiff was deprived of pay” in violation of both the FLSA and the NYLL. Id. ¶ 32.

During Plaintiff's employment, it was her “understanding that she was paid at a lower minimum wage rate typically only paid to customer service employees who receive customer tips.” Id. ¶ 26. Plaintiff brought her concerns about being paid below minimum wage and not receiving tips to both Defendants Thakurdeen and Singh. Id. ¶¶ 27–28. Specifically, Plaintiff states that, prior to her termination, she complained to Defendant Thakurdeen “that she was not paid any tips and paid below minimum wage.” Id. ¶ 27. The day after Plaintiff raised these concerns to Defendant Thakurdeen, Defendant Thakurdeen sent Plaintiff a text message that said “we don't need your help” and terminated Plaintiff from her position. Id. ¶ 27.

Plaintiff brings claims against Defendants for their failure to pay minimum wage, overtime, and tips to Plaintiff, thereby violating the FLSA and the NYLL. Id. ¶¶ 39–51 (Count I – FLSA wage claims), 52–61 (Count II – NYLL wage claims). Plaintiff also asserts that she is entitled to spread-of-hours pay under the NYLL, id. ¶ 59, and that Defendants violated the NYLL by failing to provide the required wage notices and paystubs pursuant to the NYLL, id. ¶¶ 62–68 (Count III – NYLL notice claims). Moreover, Plaintiff claims that Defendants violated the FLSA by terminating her in response to her complaints about unpaid wages and tips. Id. ¶¶ 69–71 (Count IV – FLSA retaliatory termination claim).

II. Procedural History

Plaintiff initiated this action on October 9, 2023. See Compl., ECF 1. On December 26, 2023, Defendants 12710 Kitchen Corp. and Thakurdeen filed an answer in response to Plaintiff's complaint. Answer, ECF 8.

On February 8, 2024, the Court held an initial conference and at the parties’ request, the case was referred to mediation. Feb. 8, 2024 ECF Min. Entry & Order. As of April 16, 2024, the case remained unsettled following mediation. Apr. 16, 2024 ECF Report of Mediation Unsettled. Shortly thereafter, on April 19, 2024, counsel for Defendants 12710 Kitchen Corp. and Thakurdeen filed a motion to withdraw as attorney, citing unpaid legal fees. See Mot. to Withdraw, ECF 13; Rodriguez Decl., ECF 13-1, ¶¶ 3–6.

The Court scheduled a status conference on the motion to withdraw, directing Defendant Thakurdeen and a representative of Defendant 12710 Kitchen Corp. to be present at the scheduled conference. Apr. 22, 2024 ECF Order. At the conference on May 16, 2024, the Court granted defense counsel's motion to withdraw and warned Defendant 12710 Kitchen Corp. that “a party that is a corporation must be represented by counsel in order to appear in this Court.” May 16, 2024 ECF Min. Entry & Order (alteration and quotation marks omitted). The Court directed Defendants to have new counsel enter their appearance by May 31, 2024. Id. On June 15, 2024, the Court noted that Defendants 12710 Kitchen Corp. and Thakurdeen had not had new counsel appear nor had Thakurdeen indicated her intent to proceed pro se; the Court extended the deadline for Defendants to do so to June 28, 2024. June 15, 2024 ECF Order. By June 28, 2024, Defendants 12710 Kitchen Corp. and Thakurdeen had not had new counsel enter an appearance, so on that date Plaintiff filed a letter indicating her intent to move for a default judgment. Pl. Letter, ECF 15; see July 22, 2024 ECF Order (directing Plaintiff to file the anticipated motion for default judgment by August 5, 2024). On August 5, 2024, Plaintiff requested leave to amend the complaint to identify the John Doe Defendant prior to moving for a default judgment, and the Court granted the request on August 6, 2024. Status Report, ECF 16; Aug. 6, 2024 ECF Order. On August 27, 2024, Plaintiff filed her amended complaint against Defendants 12710 Kitchen Corp., Jagdei Thakurdeen, and Chand Singh (formerly the John Doe Defendant). Am. Compl., ECF 17. A proposed summons was issued for the newly named Defendant Chand Singh, which summons was filed as executed on October 14, 2024. Aff. of Service, ECF 20. No defendant answered or otherwise responded to the amended complaint. See generally Docket.

On January 10, 2025, the Clerk of Court entered default against all Defendants. Clerk's Entry of Default, ECF 26. On January 13, 2025, Plaintiff first initiated default motion practice, which was referred to the undersigned Magistrate Judge. Notice of Mot., ECF 28; Jan. 14, 2025 ECF Order Referring Mot. On January 17, 2025, Defendant Thakurdeen filed a letter indicating she was attempting to retain counsel in order to avoid a default judgment. Thakurdeen Letter, ECF 32. The Court scheduled a default motion hearing, and on March 18, 2025, Defendant Thakurdeen appeared at the hearing pro se. Mar. 18, 2025 ECF Min. Entry & Order. At the hearing, Plaintiff represented her intent to proceed with a default judgment motion in light of the case history. Id. The Court directed Plaintiff's counsel to provide any cost receipts in support of the request for costs as well as any supplemental materials to address the Court's concerns regarding procedural deficiencies in Plaintiff's motion. Id. On April 15, 2025, Plaintiff again moved for default judgment, which was referred to the undersigned. Mot. for Default J., ECF 36; Apr. 22, 2025 ECF Order Referring Mot.

On May 13, 2025, Defendants Thakurdeen and Singh filed a letter motion requesting that their default be vacated and that they be “allowed to proceed forward to assert a defense on the merits.” Mot. to Vacate, ECF 43, at 2. On June 23, 2025, the Court held a status conference, with Defendants Thakurdeen and Singh present, pro se, as well as Plaintiff's counsel. June 23, 2025 ECF Min. Entry & Order. During the conference, Plaintiff agreed to excuse the default as to Defendant Singh only and did not object to the Court's administrative termination of the motions for default judgment. Id.; see Mot. for Default J., ECF 28; Mot. for Default J., ECF 36; Mot. to Vacate, ECF 43. The Court set deadlines for discovery and instructed Defendant Singh to provide the Court with his contact information by July 7, 2025, and to indicate his intent to proceed pro se. June 23, 2025 ECF Min. Entry & Order. The Court further scheduled a status conference for September 25, 2025. Id.

On July 28, 2025, after Defendant Singh had failed to provide the Court with his contact information as ordered, the Court extended the deadline to August 11, 2025. July 28, 2025 ECF Order. The Court further warned Defendant Singh that a failure to comply with the Court's order could result in this case falling back into the default posture. Id. On August 15, 2025, after Defendant Singh again failed to appear, the Court directed Plaintiff to file a status report by August 29, 2025, providing anticipated next steps. Aug. 15, 2025 ECF Order. On August 29, 2025, Plaintiff filed a status report representing that Plaintiff served discovery requests upon Defendants and indicating that Plaintiff would re-initiate default motion practice if timely responses to the discovery requests were not received. Status Report, ECF 46. The Court directed Plaintiff to initiate motion practice or submit a status report by September 23, 2025. Sept. 2, 2025 ECF Order.

On September 23, 2025, Plaintiff once again filed a motion for default judgment, which the Honorable Nina R. Morrison referred to the undersigned Magistrate Judge. Mot., ECF 47; Sept. 24, 2025 ECF Order Referring Mot. On September 25, 2025, the Court held the previously scheduled status conference. Sept. 25, 2025 ECF Min. Entry & Order. Defendants did not appear, and the Court took Plaintiff's motion under advisement. Id. The Court also directed Plaintiff to file an updated request for a certificate of default by September 29, 2025. Id. Additionally, the Court directed Plaintiff to file a supplemental affirmation demonstrating that the individual Defendants are not known to be minors or incompetent persons and certifying that all default motion papers were mailed to Defendants in accordance with E.D.N.Y. Local Civil Rules 55.1 and 55.2. Id.

On September 29, 2025, Plaintiff filed an updated request for a certificate of default as to all Defendants, and the Clerk of Court entered default against all Defendants on October 1, 2025. Request for Cert. of Default, ECF 51; Clerk's Entry of Default, ECF 52. Plaintiff also submitted an affirmation demonstrating that the individual Defendants are not known to be minors or incompetent and certifying the mailing of the default papers. Chen Suppl. Affirmation, ECF 53. To date, Defendants have not reappeared. See generally Docket.

DISCUSSION

I. Legal Standards

Federal Rule of Civil Procedure 55 “provides a two-step process for obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). The plaintiff must first obtain an entry of default when a defendant “has failed to plead or otherwise defend” in an action. Fed. R. Civ. P. 55(a). Second, after the certificate of default is entered, and on the plaintiff's application, the district court may then enter a default judgment. Fed. R. Civ. P. 55(b)(2); see E.D.N.Y. Local Civ. R. 55.2(c). A “plaintiff is not entitled to a default judgment as a matter of right simply because a party is in default.” Finkel v. Universal Elec. Corp., 970 F. Supp. 2d 108, 118 (E.D.N.Y 2013). Rather, the decision to grant a motion for default judgment is “left to the sound discretion of [the] district court because it is in the best position to assess the individual circumstances of a given case and to evaluate the credibility and good faith of the parties.”² Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).

The district court must also determine whether the plaintiff's “allegations establish [the defendant's] liability as a matter of law.” Finkel v. Romanowicz (“Romanowicz”), 577 F.3d 79, 84 (2d Cir. 2009). In making this determination, the “court is required to accept all of the ․ factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor.” Id. It is “the plaintiff's burden to demonstrate that those uncontroverted allegations, without more, establish the defendant's liability on each asserted cause of action.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012).

Moreover, while a default constitutes an admission of liability as to well-pleaded allegations, a default is “not considered an admission of damages.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Under Federal Rule of Civil Procedure 55(b)(2), courts have discretion to decide whether an evidentiary hearing is necessary or whether the amount of damages can be determined based on detailed affidavits or documentary evidence. Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991). “The district court must ․ conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Here, too, the “[p]laintiff bears the burden of presenting proof of damages, which may take the form of documentary evidence or detailed affidavits.” J & J Sports Prods., Inc. v. Ahuachapan Corp., 422 F. Supp. 3d 652, 663 (E.D.N.Y. 2019) (citing CIT Bank, N.A. v. Dambra, No. 14-CV-3951 (SLT) (VMS), 2015 WL 7422348, at *5 (E.D.N.Y. Sept. 25, 2015); Action S.A., 951 F.2d at 508)); see also Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (explaining that courts can assess damages based on “ ‘detailed affidavits and documentary evidence’ ” (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). In the default posture, the moving party is “entitled to all reasonable inferences from the evidence offered.” Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

Specific to FLSA and NYLL cases, “in the absence of rebuttal by defendants, plaintiffs’ recollection and estimates of hours worked are presumed to be correct.” Ting Yao Lin v. Hayashi Ya II, Inc., No. 08-CV-6071 (SAS) (AJP), 2009 WL 289653, at *3 (S.D.N.Y. Jan. 30, 2009), report and recommendation adopted, 2009 WL 513371 (S.D.N.Y. Feb. 27, 2009); see Chao v. Vidtape, Inc., 196 F. Supp. 2d 281, 293 (E.D.N.Y. 2002); see also Rodriguez v. Yayo Rest. Corp., No. 18-CV-4310 (FB) (PK), 2019 WL 4482032, at *2 (E.D.N.Y. Aug. 23, 2019), report and recommendation adopted, 2019 WL 4468054 (E.D.N.Y. Sept. 18, 2019). Here, Plaintiff seeks $5,488.40 in compensatory damages under the FLSA and the NYLL; $5,488.40 in liquidated damages; pre- and post-judgment interest; $9,150.00 in statutory damages for wage notice and wage statement violations under the NYLL; $26,732.50 in back pay damages; $26,732.50 in liquidated damages on the backpay claims; $50,000.00 in emotional distress damages; and attorneys’ fees and costs in the amount of $16,650.00 and $882.00, respectively.³ Mot., ECF 47; Mem., ECF 47-1, at 15. For the following reasons, the Court recommends entry of a default judgment in Plaintiff's favor and an award of damages and interest, as detailed below.

II. Entry of Default

In determining whether a defendant's conduct warrants entry of a default judgment, courts apply the same factors applicable to a motion to set aside entry of default. See Enron Oil, 10 F.3d at 96 (noting that “the factors examined in deciding whether to set aside a default or a default judgment are the same”). These factors include “1) whether the defendant's default was willful; 2) whether [the] defendant has a meritorious defense to [the] 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.” Mason Tenders Dist. Council v. Duce Constr. Corp. (“Duce Constr. Corp.”), No. 02-CV-9044 (LTS) (GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Enron Oil, 10 F.3d at 96. “Other relevant equitable factors may also be considered, for instance, whether the failure to follow a rule of procedure was a mistake made in good faith and whether the entry of default would bring about a harsh or unfair result.” Enron Oil, 10 F.3d at 96. In this case, the Court concludes that entry of a default judgment is appropriate.

A. Willfulness

In the context of default, willfulness “refer[s] to conduct that is more than merely negligent or careless.” SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). That said, a defendant's “failure to respond to a complaint evinces willful default.” Antoine v. Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 80 (E.D.N.Y. 2020) (citing McNulty, 137 F.3d at 738–39). Willfulness may also be presumed where, in addition to being properly served with the complaint, the defendant is notified of court proceedings and yet failed to respond. See, e.g., United States v. Dipaolo, 466 F. Supp. 2d 476, 482 (S.D.N.Y. 2006); see also Antoine, 489 F. Supp. 3d at 81.

Defendants’ failure to participate in this action after clearly receiving notice of it and being provided extensions of time to participate supports a clear finding of willfulness. Plaintiff adequately served Defendant 12710 Kitchen Corp. by delivering the summons and complaint to the New York Secretary of State, as permitted by New York law. Aff. of Service, ECF 4; N.Y. Bus. Corp. Law § 306(b)(1); Fed. R. Civ. P. 4(e)(1), (h)(1); see also Jean-Louis v. Warfield, 898 F. Supp. 2d 570, 574 (E.D.N.Y. 2012) (explaining that New York law permits service upon a corporation via the New York Secretary of State). Plaintiff also filed proof of service as to Defendant Thakurdeen indicating that copies of the summons and complaint were served on Jane Doe, “a person of suitable age and discretion,” at 12710 Liberty Avenue, Floor 2, in Richmond Hill, NY, an address described as Defendant Thakurdeen's “dwelling house (usual place of abode)”; additionally, copies of the summons, complaint, and amended complaint were later mailed to Defendant Thakurdeen at the same address.⁴ Aff. of Service, ECF 5; Aff. of Service, ECF 21. Additionally, Plaintiff adequately served Defendant Singh by serving copies of the summons and amended complaint to a Jane Doe at Defendant Singh's dwelling and by then mailing the summons and complaint to Singh at the same address. Aff. of Service, ECF 20.

Although Defendants have appeared at some conferences, they have not responded to the amended complaint or taken steps to defend the case. See generally Docket; see S.E.C. v. Anticevic (“Anticevic”), No. 05-CV-6991 (KMW), 2009 WL 4250508, at *2 (S.D.N.Y. Nov. 30, 2009) (“Default is proper where a defendant fails to answer an amended complaint, even where the defendant has answered the original complaint.” (citing Parise v. Riccelli Haulers, Inc., 672 F. Supp. 72, 74 (N.D.N.Y. 1987)); FDIC as Receiver for AmTrust Bank v. Hodge, No. 09-CV-3234 (MKB) (JO), 2013 WL 1810741, at *1 n.1 (E.D.N.Y. Apr. 29, 2013) (noting that the defendant's “failure to respond to the Amended Complaint, on its own, would justify default” even when the defendant filed an answer to the original complaint); see also Ali v. Ramos, No. 16-CV-1994 (ALC), 2018 WL 1353210, at *5 n.5 (S.D.N.Y. Mar. 14, 2018) (observing that “ ‘it is settled law that any amended complaint completely replaces any prior complaint’ ” (quoting Hernandez v. Goord, No. 01-CV-9585 (SHS) (DFE), 2009 WL 3963922, at *1 (S.D.N.Y. Nov. 16, 2009)). In addition, as detailed above, Defendants have entirely failed to participate since June 23, 2025, even after they were sent the Court's July 28, 2025 and August 15, 2025 orders, which both warned Defendants that failure to comply with the Court's orders would result in the case falling into the default posture once again.⁵ July 28, 2025 ECF Order; Aug. 15, 2025 ECF Order. Finally, Defendants again failed to respond or appear after Plaintiff moved for default judgment for the third time and served the motion and supporting documents on Defendants. See Mot., ECF 47; Affirmation of Service, ECF 53-1. In light of Defendants’ failure to participate, despite being provided actual notice of the proceeding and periodically appearing at conferences in the case, the Court weighs this factor heavily in favor of default.

B. Meritorious Defense

“To satisfy the criterion of a ‘meritorious defense,’ the defense need not be ultimately persuasive at this stage.” Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996). Rather, “ ‘[a] defense is meritorious if it is good at law so as to give the factfinder some determination to make.’ ” Id. (quoting Anilina Fabrique de Colorants v. Aakash Chems. & Dyestuffs, Inc., 856 F.2d 873, 879 (7th Cir. 1988)). “Where a party initially appears and answers, but subsequently fails to continue in the case, a default judgment can still issue if the party fails to continue defending the case.” Rowe v. CC Rest. & Bakery, Inc., No. 17-CV-1423 (CBA) (PK), 2019 WL 4395158, at *3 (E.D.N.Y. Aug. 15, 2019) (quotation marks omitted) (collecting cases), report and recommendation adopted, 2019 WL 4393987 (E.D.N.Y. Sept. 13, 2019); see Anticevic, 2009 WL 4250508, at *2 (“Default is proper where a defendant fails to answer an amended complaint, even where the defendant has answered the original complaint.” (citing Parise, 672 F. Supp. at 74). Here, although Defendants 12710 Kitchen Corp. and Thakurdeen initially filed an answer, they have failed to continue defending the case for over a year, despite multiple opportunities to appear. In such instances, “a default judgment can still issue.” Rowe, 2019 WL 4395158, at *3. Additionally, no Defendant has responded to the operative amended complaint. See generally Docket. In such instances, “courts are unable to make a determination [of] whether the defendant has a meritorious defense.” Joseph v. HDMJ Rest., Inc., 970 F. Supp. 2d 131, 143 (E.D.N.Y. 2013); see FDIC as Receiver for AmTrust Bank, 2013 WL 1810741, at *1 n.1 (noting that a defendant's “failure to respond to the Amended Complaint, on its own, would justify default”). Accordingly, this factor weighs in favor of default as to all Defendants.

C. Prejudice

“The final factor the Court must consider is whether the non-defaulting parties would be prejudiced if the motion for default were to be denied.” Joseph, 970 F. Supp. 2d at 148. Denying a motion for default is prejudicial to the plaintiff where “ ‘there are no additional steps available to secure relief.’ ” Id. (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06-CV-14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008), report and recommendation adopted, Jan. 26, 2009 Endorsement, ECF 18). In light of Defendants’ repeated failure to comply with Court orders and lack of participation in the case, “there is no indication that requiring Plaintiff[ ] to take further steps ․ would be effective in eliciting a response from Defendants.” Duce Constr. Corp., 2003 WL 1960584, at *3. The Court therefore finds that Plaintiff would be unfairly prejudiced by denial of the motion for default.

All three factors weigh in favor of default. Seeing no other equitable reason for denying Plaintiff's motion, the Court recommends entering a default judgment.

III. Liability, Compensatory Damages, and Statutory Damages

A. Coverage Under the FLSA

To establish liability under the FLSA, a “plaintiff must prove the following: (1) the defendant is an employer subject to [the] FLSA; (2) the plaintiff is an ‘employee’ within the meaning of [the] FLSA; and (3) the employment relationship is not exempted from [the] FLSA.” Payamps v. M & M Convenience Deli & Grocery Corp., No. 16-CV-4895 (LDH) (SJB), 2018 WL 3742696, at *4 (E.D.N.Y. May 18, 2018) (quotation marks omitted), report and recommendation adopted, Sept. 12, 2018 ECF Order Adopting R. & R.

1. Employers Subject to the FLSA

An employer is subject to the FLSA if (1) its employees are “engaged in commerce,” or (2) the employer is an “enterprise engaged in commerce.” 29 U.S.C. §§ 206, 207; see also Padilla v. Manlapaz, 643 F. Supp. 2d 298, 299 (E.D.N.Y. 2009). These two methods of establishing FLSA coverage are known as “individual coverage” and “enterprise coverage,” respectively. Jacobs v. N.Y. Foundling Hosp., 483 F. Supp. 2d 251, 257 (E.D.N.Y. 2007). A defendant is an “[e]nterprise engaged in commerce or in the production of goods for commerce” if the defendant is an enterprise that:

has employees engaged in commerce or in the production of goods for commerce, or that 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). “Commerce” is, in turn, defined as “trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b).

Here, the Court finds that Plaintiff has adequately alleged that Defendant 12710 Kitchen Corp. was an “[e]nterprise engaged in commerce” and therefore subject to the FLSA. 29 U.S.C. § 203(s)(1). Specifically, Plaintiff alleges that Defendant 12710 Kitchen Corp. had six to seven employees working in the restaurant, “engaged in interstate commerce and/or the production of goods for commerce,” and “had gross revenues in excess of $500,000.” Am. Compl., ECF 17, ¶¶ 17, 40, 42.

Although Plaintiff's allegations are somewhat conclusory, courts have noted that “virtually every enterprise in the nation doing the requisite dollar volume of business is covered by the FLSA.” Archie v. Grand Cent. P'ship, Inc., 997 F. Supp. 504, 530 (S.D.N.Y. 1998) (quotation marks omitted); see Marine v. Vieja Quisqueya Rest. Corp., No. 20-CV-4671 (PKC) (RML), 2022 WL 17820084, at *3 (E.D.N.Y. Sept. 8, 2022) (noting that “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”) (collecting cases), report and recommendation adopted, Sept. 23, 2022 ECF Order Adopting R. & R.; see also Jacobs, 577 F.3d at 99 n.7. In addition, even “local business activities fall within the reach of the FLSA when an enterprise employs workers who handle goods or materials that have moved or been produced in interstate commerce.” Archie, 997 F. Supp. at 530. Here, the Court may safely infer that such goods and materials were used in the operation of 12710 Kitchen Corp., and that accordingly, Plaintiff was employed in an enterprise engaged in commerce. See Romanowicz, 577 F.3d at 84 (“In light of [a defendant's] default, a court is required to accept all of the [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.”); Shim v. Millennium Grp., No. 08-CV-4022 (FB) (VVP), 2009 WL 211367, at *3 (E.D.N.Y. Jan. 28, 2009) (finding that employer was engaged in interstate commerce where it was “simply inconceivable that none of the [goods] used” in its business “originated outside of New York”). Given the nature of 12710 Kitchen Corp.’s business, the Court finds that Plaintiff's allegations are sufficient to establish that it was subject to the FLSA.

With respect to Defendants Thakurdeen and Singh, the FLSA defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Under the statute, a “person” may be an “individual” or “any organized group of persons,” including a corporation. 29 U.S.C. § 203(a). “An individual may be liable as an employer under the FLSA so long as he exercises ‘operational control’ over the employee in question[,] ․ and individuals who are found to be ‘employers’ under the FLSA may be held jointly and severally liable to the plaintiff.” Saucedo v. On the Spot Audio Corp., No. 16-CV-0451 (CBA) (CLP), 2016 WL 8376837, at *5 (E.D.N.Y. Dec. 21, 2016) (citation omitted), report and recommendation adopted, 2017 WL 780799 (E.D.N.Y. Feb. 28, 2017), vacated by stipulation on other grounds, 2018 WL 4347791 (E.D.N.Y. Jan. 23, 2018).

Here, Plaintiff alleges that Defendants Thakurdeen and Singh “exercise[d] operational control” over all employees at 12710 Kitchen Corp., including Plaintiff. Am. Compl., ECF 17, ¶¶ 10–11. Plaintiff further claims that Defendants Thakurdeen and Singh controlled significant business functions of 12710 Kitchen Corp., such as the “authority to effect any changes to the quality and terms of employees’ employment, including changing their schedule, compensation, or terminating or hiring such employees.” Id. Plaintiff also avers that Defendant “Thakurdeen's signature is present on paychecks retained by Plaintiff.” Id. ¶ 10. Taking these allegations as true in the context of this default motion, the Court finds that Defendants were employers subject to the FLSA. See, e.g., Lopez v. Royal Thai Plus, LLC, No. 16-CV-4028 (NGG) (SJB), 2018 WL 1770660, at *4 n.4 (E.D.N.Y. Feb. 6, 2018), report and recommendation adopted, 2018 WL 1770555 (E.D.N.Y. Apr. 12, 2018).

2. Employees Covered by the FLSA

Under the FLSA, an “employee” generally means “any individual employed by an employer.” 29 U.S.C. § 203(e)(1); see generally id. § 203(e). “In light of [this] broad definition ․, the Second Circuit has found allegations which simply ‘state where the plaintiffs worked, outline their positions, and provide their dates of employment’ sufficient to support a finding of employee status.” Suggs v. Crosslands Transp., Inc., No. 13-CV-6731 (ARR) (MDG), 2015 WL 1443221, at *3 (E.D.N.Y. Mar. 27, 2015) (quoting Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 91 (2d Cir. 2013)).

Here, Plaintiff alleges that she was employed by Defendants to work at 12710 Kitchen Corp. in the role of “a kitchen prep and chef in the kitchen of the restaurant” from October 16, 2022, through January 17, 2022, and that Defendants determined her job duties and responsibilities, directed her schedule and controlled payroll, and determined the number of hours she worked each week. Am. Compl., ECF 17, ¶¶ 10–11, 14–15, 18. Plaintiff also asserts that Defendants Thakurdeen and Singh “required her to be responsible for bartending, cross-training, making drinks, serving customers, running tables, cleaning, taking orders, hosting and seating customers, [and] cleaning the restaurant after cleaning kitchen if busy and understaffed.” Id. ¶ 18. “It follows, therefore, that for purposes of this default, [Plaintiff] qualifies as an ‘employee’ under the FLSA.” Garcia v. Badyna, No. 13-CV-4021 (RRM) (CLP), 2014 WL 4728287, at *5 (E.D.N.Y. Sept. 23, 2014). Taking Plaintiff's allegations as true in the context of this default, the Court finds that she was an employee covered by the FLSA.

3. FLSA Exemptions

Finally, the Court does not find any basis for exempting the employment relationship at issue here from the FLSA. See 29 U.S.C. § 213(a) (setting forth the relevant exemptions). As noted above, Plaintiff alleges that she was employed to work in various roles at the business, including as a chef; her description of her responsibilities does not indicate that her employment would fall under any of the statutory exemptions. Id.; see Am. Compl., ECF 17, ¶¶ 14, 18. For the purposes of this default motion, Plaintiff has therefore adequately alleged facts establishing the applicability of the FLSA as a predicate to her claims under the statute.

B. Coverage Under the NYLL

To recover under the NYLL, a plaintiff must first “prove that he was an employee and that Defendants were employer[s] as defined by the statute and accompanying regulations.” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 360 (E.D.N.Y. 2015) (alteration in original) (quotation marks omitted) (citing NYLL § 650 et seq.; N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2). “The NYLL's definitions are nearly identical to the FLSA's.” Glatt v. Fox Searchlight Pictures Inc., 293 F.R.D. 516, 526 (S.D.N.Y. 2013), vacated and remanded on other grounds, 811 F.3d 528 (2d Cir. 2016); see Ethelberth, 91 F. Supp. 3d at 360 (explaining that the NYLL's definition of an employer is broader than the FLSA's). Having already found that Plaintiff has sufficiently pleaded that Defendants were employers and that Plaintiff was their employee under the FLSA, the Court finds that Plaintiff has also adequately alleged an employment relationship with Defendants under the NYLL.

C. Violations of the FLSA and the NYLL

Having determined Plaintiff and Defendants are covered by the FLSA and the NYLL, the Court must now decide whether Plaintiff has adequately pleaded Defendants’ liability. As a preliminary matter, the Court notes that Plaintiff's claims fall within the relevant statutes of limitation. See 29 U.S.C. § 255(a) (two years for ordinary FLSA violations, three years for “willful” violations); NYLL § 198(3) (six years).⁶ As discussed above, Plaintiff's claims accrued beginning in October 2022, and she filed this case less than two years later, in October 2023. See generally Compl., ECF 1.

Plaintiff alleges that Defendants are liable for violations of the FLSA and the NYLL's minimum wage and overtime provisions,⁷ the NYLL's spread-of-hours provision, and the New York Wage Theft Prevention Act (“WTPA”) for failure to provide wage statements and notices. See generally Am. Compl., ECF 17. Additionally, Plaintiff alleges that Defendants are liable for retaliatory termination in violation of the FLSA. See generally id.

1. Overtime Violation

Plaintiff alleges that Defendants violated the FLSA and the NYLL by failing to pay her overtime wages for hours worked in excess of 40 hours per week. Am. Compl., ECF 17, ¶¶ 43–44, 58; Schlanger Decl., ECF 49, ¶¶ 19–21. Accepting Plaintiff's factual allegations as true, the Court recommends finding that Defendants’ default amounts to an admission of liability for violating the overtime provisions of the FLSA and the NYLL.

Under both statutes, an employee must “be compensated at a rate of no less than one and one-half times the regular rate of pay for any hours worked in excess of forty per week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)); see N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (“An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in” the FLSA.). Accordingly, to establish liability under the FLSA for an unpaid overtime claim, the “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. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). Plaintiff must also show “that the[ir] employer had actual or constructive knowledge” of their overtime hours. Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011).

The FLSA and NYLL differ somewhat in their approaches to calculating the regular rate of pay. “Under the FLSA, ‘[t]he regular rate of pay is determined by dividing [the employee's] total remuneration for employment ․ in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.’ ” Rosa v. La Oficina of Queens, Inc., No. 18-CV-6915 (FB) (PK), 2023 WL 2745214, at *8 (E.D.N.Y. Mar. 17, 2023) (quoting 29 C.F.R. § 778.109), report and recommendation adopted, 2023 WL 2736237 (E.D.N.Y. Mar. 31, 2023). The Court notes that while “there is a rebuttable presumption that a weekly salary covers 40 hours, the employer can rebut the presumption by showing an employer-employee agreement that the salary cover[s] a different number of hours.” Rowe, 2019 WL 4395158, at *7; cf. David Jean-Louis v. BlueTriton Brands, Inc., No. 24-CV-5960 (DG) (TAM), 2026 WL 388648, at *7 (E.D.N.Y. Jan. 16, 2026).

The NYLL, however, sets forth a specific method to calculate the regular rate of pay for workers in the hospitality industry — including restaurant workers — under the Hospitality Industry Wage Order (“HIWO”). See N.Y. Comp. Codes R. & Regs. tit. 12, § 146-3.1(a). For such workers, “the employee's regular hourly rate of pay shall be calculated by dividing the employee's total weekly earnings ․ by the lesser of 40 hours or the actual number of hours worked by that employee during the work week.” Id. § 146-3.5(b). Unlike the FLSA, the HIWO “contains no mechanism for rebutting the calculation based on a maximum 40-hour work week with evidence that the employee had an agreement with the employer to work more than 40 hours a week.” Rowe, 2019 WL 4395158, at *8. “[W]here both the FLSA and [NYLL] provide for recovery, it is appropriate for the Court to award the maximum recovery available for each violation.” Drozd v. Vlaval Const., Inc., No. 09-CV-5122 (SJ) (CLP), 2012 WL 4815639, at *2 (E.D.N.Y. Oct. 10, 2012).

Here, Plaintiff alleges she worked in kitchen prep and as a chef at a restaurant, so the HIWO applies. Am. Compl., ECF 17, ¶¶ 14, 18; see N.Y. Comp. Codes R. & Regs. tit. 12, § 146-3.1(a); Elvey v. Silver's Crust W. Indian Rest. & Grill, Inc., No. 18-CV-0126 (FB) (VMS), 2019 WL 3937126, at *2, *9 (E.D.N.Y. July 3, 2019) (applying the HIWO's overtime provisions to a chef plaintiff), report and recommendation adopted, 2019 WL 3936552, at *10 (E.D.N.Y. Aug. 20, 2019). In addition, Plaintiff's various other responsibilities, including hosting, bartending, cross-training, serving customers, running tables, cleaning, and seating, do not preclude Plaintiff from recovering under the HIWO. Chancy v. Moods Cafe I, Inc., No. 25-CV-4733 (AMD) (LGD), 2026 WL 1476908, at *10 (E.D.N.Y. May 26, 2026) (applying the HIWO to plaintiff who was a former bartender working at a restaurant) (collecting cases), report and recommendation adopted, 2026 WL 1760821 (E.D.N.Y. June 18, 2026); Veintimilla v. Sunny Builders NY, No. 22-CV-1446 (LDH) (TAM), 2023 WL 2969385, at *7 n.6 (E.D.N.Y. Feb. 17, 2023) (observing that the HIWO applies to employees working in a restaurant or hotel).

As discussed above, Plaintiff alleges that Defendants controlled her schedule and pay and determined the number of hours she worked each week, indicating that Defendants had actual knowledge of Plaintiff's overtime hours. Am. Compl., ECF 17, ¶¶ 10–11; see also Kuebel, 643 F.3d at 361. Plaintiff claims that for the first week of her employment (“Period 1”), she worked seven days, from 5:30 p.m. to 4:00 a.m., totaling 73.50 hours that week. Am. Compl., ECF 17, ¶ 19. Then, for the remaining twelve weeks of her employment (“Period 2”), she worked five days a week from 6:00 p.m. to approximately 4:15 a.m., totaling 51.25 hours per week.⁸ Id. ¶ 20. For the entirety of her employment, Plaintiff was paid an average of $722.50 per week.⁹ Id. ¶ 21. Plaintiff contends that this sum did not account for the actual number of hours she worked and that her weekly hours were greater than 40 for her entire period of employment; thus, Plaintiff asserts that her regular rate of pay should be calculated by dividing her weekly earnings by 40 hours. Am. Compl., ECF 17, ¶¶ 19–20; see Mem., ECF 47-1, at 10; see also Lopez v. Martha's Cocina Mexicana, LLC, No. 23-CV-2053 (LDH) (TAM), 2023 WL 9603828, at *8 (E.D.N.Y. Dec. 27, 2023), report and recommendation adopted, Jan. 30, 2024 Order Adopting R. & R.; cf. Rowe, 2019 WL 4395158, at *8 (dividing weekly salary by 40 where 40 is less than the number of hours actually worked).

Under the HIWO, the Court calculates Plaintiff's regular rate of pay as $18.06 per hour for the entirety of her employment ($722.50 / 40). It follows that for each hour worked in excess of 40 hours per week, Plaintiff was entitled to $27.09 per hour in overtime pay ($18.06 × 1.5). For Period 1, Plaintiff claims she worked 73.5 hours; accordingly, Plaintiff is entitled to overtime wages for 33.5 hours at $27.09 per hour, or $907.52 for her first week. During Period 2, Plaintiff claims she worked an average of 51.25 hours per week. Therefore, during Period 2, Plaintiff is entitled to overtime wages for 11.25 hours per week at $27.09 per hour, or $304.76 per week (totaling $3,657.12 for 12 weeks).¹⁰ As Period 1 lasted one week and Period 2 lasted approximately 12 weeks, Am. Compl., ECF 17, ¶¶ 14–15, 19, 20, the Court finds that Defendants are liable for Plaintiff's unpaid overtime, totaling $4,564.64 ($907.52 + $3,657.12 = $4,564.64).

2. Unpaid Spread-of-Hours Pay

Under the NYLL spread-of-hours provision, certain employees are entitled to an additional hour of pay at the prevailing minimum wage for every day they work more than 10 hours. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4 (“An employee shall receive one [additional] hour's pay at the basic minimum hourly wage rate ․ for any day in which: (a) the spread of hours exceeds 10 hours; or (b) there is a split shift; or (c) both situations occur.”). Generally, “[a] limitation upon a plaintiff's eligibility to recover for spread-of-hours is that the plaintiff not earn more than the minimum wage.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 45 (E.D.N.Y. 2015). However, “[a]ll restaurant employees are entitled to the spread-of-hours payments at the regular minimum wage for each day they work more than ten hours regardless of the employee's regular rate of pay.” Chocolatl v. Rendezvous Cafe, Inc., No. 18-CV-3372 (CBA) (VMS), 2019 WL 5694104, at *8 (E.D.N.Y. Aug. 16, 2019) (collecting cases), report and recommendation adopted, 2020 WL 1270891 (E.D.N.Y. Mar. 17, 2020); N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.6.

As set forth above, during Period 1, Plaintiff worked 10.5 hours per day for seven days. Am. Compl., ECF 17, ¶ 19. During Period 2, Plaintiff worked over ten hours per day for five days per week for a period of roughly 12 weeks (51.25 hours / 5 = 10.25 hours). Id. ¶¶ 14–15, 20. Therefore, Plaintiff is eligible for spread-of-hours pay for the entirety of her employment. The Court calculates the spread-of-hours pay in the chart below.

Tabular or graphical material not displayable at this time.

 ¹¹

Accordingly, the Court finds that Plaintiff is entitled to $1,005.00 for spread-of-hours pay.

3. New York Wage Theft Protection Act (“WTPA”) Violations

Plaintiff also requests a default judgment with respect to Defendants’ alleged violations of the NYLL's wage notice and statement requirements, which were codified as part of the WTPA. See NYLL §§ 195(1), 195(3). Under these provisions, an employer must provide its employees: (1) “written notice of their rate, how it will be paid (‘by the hour, shift, day, week, salary, piece, commission or other’), allowances, (‘including tip’) and the employer's address and contact information,” and (2) “ ‘a statement of every payment of wages.’ ” Zambrano v. Envios Espinoza, Inc., No. 22-CV-3031 (OEM) (SIL), 2025 WL 1808694, at *11 (E.D.N.Y. July 1, 2025) (quoting NYLL §§ 195(1), 195(3)). An employer who fails to provide the required notices and statements is liable for statutory damages. See NYLL §§ 198(1-b), 198(1-d).

Plaintiff must establish Article III standing with respect to her wage notice and statement claims. See Guthrie v. Rainbow Fencing, Inc., 113 F.4th 300, 302–03, 304 (2d Cir. 2024) (analyzing Article III standing in the context of NYLL wage notice and statement claims); see also TransUnion LLC v. Ramirez, 594 U.S. 413, 426 (2021) (noting that the Supreme Court has “rejected the proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right’ ” (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016))). To establish standing, a plaintiff must have “ ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ ” Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021) (alteration in original) (quoting Spokeo, 578 U.S. at 338).

For claims brought under the WTPA, the alleged concrete injury-in-fact must “result[ ] from the failure to provide the wage notices and wage statements to maintain a claim for statutory damages under” NYLL § 195. Guthrie, 113 F.4th at 302–03. In the wake of Guthrie, courts in this Circuit have found that “[p]laintiffs sufficiently establish Article III standing when they allege that the denial of the statutory right to wage notices and wage statements ultimately resulted in underpayment.” Rosas v. M & M La Solucion Flat Fixed Inc., No. 23-CV-1212 (DG) (MMH), 2024 WL 4131905, at *12 (E.D.N.Y. Sept. 10, 2024), report and recommendation adopted, Sept. 30, 2024 ECF Order Adopting R. & R.; see also Roma v. David Carmili, Physician, P.C., 761 F. Supp. 3d 481, 490 (E.D.N.Y. 2024) (collecting cases); Zambrano, 2025 WL 1808694, at *12–13 (granting summary judgment for the plaintiffs on wage statement and notice claims).

Here, Plaintiff alleges that Defendants failed to provide required wage notices and accurate wage statements that contained “the dates of work covered by [the] payment of [her] wages,” the “rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other,” in violation of the NYLL. Am. Compl., ECF 17, ¶ 65. Plaintiff further alleges that Defendants’ unlawful pay practices caused her to be deprived of pay. Id. ¶ 32. In addition, Plaintiff alleges that Defendants did not provide wage notices and statements to Plaintiff because “tip credit allowance was never clearly included in wage statements to tipped employees for each payment period” and Defendants “failed to accurately reflect the number of hours worked and their proper compensation, including tips illegally withheld from Plaintiff.” Id. ¶ 57. By alleging that the lack of wage notice and wage statements kept Plaintiff from accurately determining the number of hours Plaintiff worked and proper compensation, Plaintiff has alleged “some causal connection between the lack of accurate notices and the downstream harm.” Guthrie, 113 F.4th at 308. Accordingly, the Court finds that Plaintiff's allegations, although somewhat conclusory, are sufficient to establish standing for her wage notice and statement claims. See Weller v. Icahn Sch. of Med. at Mount Sinai, No. 23-CV-4775 (PKC) (LB), 2025 WL 745992, at *6 (E.D.N.Y. Mar. 7, 2025) (discussing post-Guthrie cases concerning standing under the WTPA); Rosas, 2024 WL 4131905, at *12–13.

Statutory damages for wage notice and wage statement violations under the WTPA are collectively capped at $10,000. See NYLL §§ 198(1-b), 198(1-d). Because Plaintiff has alleged that Defendants continually violated these requirements during the entirety of her employment, and given the duration of her employment (which the Court calculates as including 67 work days based on Plaintiff's allegation that she worked seven days her first week and then five days per week for 12 weeks), Plaintiff is entitled to $3,350 ($50 × 67) for violations of § 195(1) and $5,000 for violations of § 195(3). See Ortega v. Frozen Deli & Grocery Inc., No. 24-CV-1231 (JLR) (SLC), 2024 WL 4751732, at *10 (S.D.N.Y. Oct. 22, 2024) (explaining that “[v]iolations of § 195(1) result in damages of $50 per workday, up to a maximum of $5,000, which is reached after 100 days” and “[v]iolations of § 195(3) result in damages of $250 per workday, up to a maximum of $5,000, which is reached after 20 days”), report and recommendation adopted, 2024 WL 4859055 (S.D.N.Y. Nov. 21, 2024); see also Du v. CGS Metal Fabrication, Inc., No. 19-CV-1821 (ARR) (TAM), 2022 WL 987316, at *9 (E.D.N.Y. Jan. 14, 2022), report and recommendation adopted, Jan. 31, 2022 ECF Order Adopting R. & R.; see also Nam v. Ichiba Inc., No. 19-CV-1222 (KAM) (RML), 2021 WL 878743, at *9–10 (E.D.N.Y. Mar. 9, 2021) (calculating WTPA damages owed to the plaintiff based on days worked, rather than total work period); Lu Nan Fan v. Jenny & Richard's Inc., No. 17-CV-6963 (WFK) (RLM), 2019 WL 1549033, at *12 (E.D.N.Y. Feb. 22, 2019) (calculating WTPA damages based on the plaintiff's total work days), report and recommendation adopted, 2019 WL 1547256 (E.D.N.Y. Apr. 9, 2019). Accordingly, the Court recommends awarding $8,350.00 in statutory damages.¹²

4. Retaliation

Plaintiff further alleges that Defendants violated the FLSA by terminating her “employment in retaliation for complaining about unpaid wages and illegally retained gratuities.” Am. Compl., ECF 17, ¶ 70; see id. ¶¶ 27–28. Accepting Plaintiff's factual allegations as true, the Court recommends finding that Defendants’ default amounts to an admission of liability for violating the retaliation provision of the FLSA.

Under the FLSA, an employer is prohibited from “discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under” the FLSA. 29 U.S.C. § 215(a)(3). In order “[t]o establish a prima facie case of retaliation” under the FLSA,” a plaintiff must allege ‘participation in protected activity known to the defendant, like the filing of a FLSA lawsuit;’ ‘an employment action disadvantaging the plaintiff;’ and ‘a causal connection between the protected activity and the adverse employment action.’ ” Diaz v. KC Plumbing, LLC, No. 19-CV-4321 (DLI) (CLP), 2021 WL 7500316, at *5 (E.D.N.Y. Mar. 1, 2021) (quoting Thompson v. Jennings & Hartwell Fuel Oil Corp., No. 14-CV-1857 (RJD) (LB), 2015 WL 5437492, at *4 (E.D.N.Y. Aug. 27, 2015), report and recommendation adopted, 2015 WL 5444939 (E.D.N.Y. Sept. 15, 2015)), report and recommendation adopted, Mar. 23, 2021 ECF Order; see Brito v. Marina's Bakery Corp., No. 19-CV-0828 (KAM) (MMH), 2022 WL 875099, at *12 (E.D.N.Y. Mar. 24, 2022) (collecting cases). Importantly, “an employee may premise a section 215(a)(3) retaliation action on an oral complaint made to an employer, so long as ․ the complaint is ‘sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.’ ” Greathouse v. JHS Sec. Inc., 784 F.3d 105, 107 (2d Cir. 2015) (quoting Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011)).

Here, Plaintiff alleges that she “complained to [D]efendant [Singh] via phone about her underpaid wages and unpaid tips.” Am. Compl., ECF 17, ¶ 28. Additionally, Plaintiff alleges that she complained to Defendant Thakurdeen “that she was not paid any tips and paid below minimum wages.” Id. ¶ 27. Plaintiff adds that “[t]he next day,” Defendant Thakurdeen “texted her and said[,] ‘we don't need your help’ and then she was terminated.” Id. These allegations are sufficient to state a claim of retaliation under the FLSA. See Diaz, 2021 WL 7500316, at *6; Blackwell v. Actor's Playhouse, No. 14-CV-0603 (LGS) (FM), 2016 WL 11483834, at *6 (S.D.N.Y. Apr. 4, 2016), report and recommendation adopted, 2016 WL 5239623 (S.D.N.Y. Sept. 22, 2016). Accordingly, the Court respectfully recommends finding that Defendants are liable for retaliatory termination under the FLSA.

* * * * *

In summary, the Court respectfully recommends that Plaintiff be awarded $4,564.64 in compensatory damages for unpaid overtime wages, $1,005.00 in compensatory damages for spread-of-hours wages, and $8,350.00 in WTPA statutory damages.

IV. Additional Damages and Interest

A. Liquidated Damages for Unpaid Overtime

Under the FLSA, an employee is entitled to recover “the amount of their unpaid minimum wages, or their unpaid overtime compensation” and “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). An employee is also entitled to recover liquidated damages under the NYLL. See Garcia v. Giorgio's Brick Oven & Wine Bar, No. 11-CV-4689 (LLS) (FM), 2012 WL 3339220, at *4 (S.D.N.Y. Aug. 15, 2012) (“Effective April 9, 2011, Sections 198(1-a) and 663(1) of the NYLL were amended to provide for liquidated damages equal to one-hundred percent of the amounts underpaid.”), report and recommendation adopted, 2012 WL 3893537 (S.D.N.Y. Sept. 7, 2012). Because a plaintiff cannot obtain a double recovery, courts award liquidated damages for unpaid wages under either the FLSA or the NYLL, whichever provides for a greater recovery. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (per curiam) (“We therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages for the same course of conduct.”); see, e.g., Morales v. Mw Bronx, Inc., No. 15-CV-6296 (TPG), 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016). Under these provisions, the Court recommends an award of liquidated damages equal to Plaintiff's compensatory damages award under the NYLL, i.e., $5,569.64, comprising $4,564.64 in compensatory damages for unpaid overtime wages and $1,005.00 in compensatory damages for spread-of-hours wages.

B. Prejudgment Interest

As to Plaintiff's request for prejudgment interest, “ ‘[i]t is well settled that in an action for violations of the [FLSA] prejudgment interest may not be awarded in addition to liquidated damages.’ ” Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *3 (S.D.N.Y. Jan. 16, 2015) (alteration in original) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988) (per curiam)). Because FLSA liquidated damages are meant to be compensatory and not punitive, prejudgment interest is not needed to restore plaintiffs to a position they would have been in absent the wage-protection violation. See Fermin, 93 F. Supp. 3d at 48; see also Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583 (1942).

In contrast to the FLSA, the NYLL permits the award of both liquidated damages and prejudgment interest. Begum, 2015 WL 223780, at *3. This is because New York State views liquidated damages as punitive, not compensatory; prejudgment interest is thus not considered a duplicative damages award. See Janus v. Regalis Constr., Inc., No. 11-CV-5788 (ARR) (VVP), 2012 WL 3878113, at *8–9 (E.D.N.Y. July 23, 2012) (explaining that liquidated damages under the NYLL are “punitive in purpose”), report and recommendation adopted, 2012 WL 3877963 (E.D.N.Y. Sept. 4, 2012).

Both liquidated damages and prejudgment interest under the NYLL are available “even where liability is found not only under the NYLL but also under the FLSA.” Begum, 2015 WL 223780, at *3 (citing Thomas v. iStar Fin., Inc., 652 F.3d 141, 150 n.7 (2d Cir. 2011)). Prejudgment interest is calculated “on the unpaid wages due under the NYLL, not on the liquidated damages awarded under the state law.” Mejia v. E. Manor USA Inc., No. 10-CV-4313 (NG) (SMG), 2013 WL 3023505, at *8 n.11 (E.D.N.Y. Apr. 19, 2013), report and recommendation adopted, 2013 WL 2152176 (E.D.N.Y. May 17, 2013); see also Calle v. Yoneles Enters., Inc., No. 16-CV-1008 (NGG) (RLM), 2017 WL 6942652, at *17 & n.22 (E.D.N.Y. Oct. 24, 2017) (noting that pre-judgment interest is appropriate for withheld wages, overtime wages and spread-of-hours damages, but not for liquidated damages or WTPA statutory damages) (collecting cases), report and recommendation adopted, 2018 WL 401269 (E.D.N.Y. Jan. 12, 2018). Here, since Plaintiff is entitled to compensatory overtime and spread-of-hours damages under the NYLL, the Court finds that Plaintiff is entitled to prejudgment interest.

The statutory rate of interest in New York is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Fermin, 93 F. Supp. 3d at 49 (collecting cases); Ying Ying Dai v. ABNS NY Inc., 490 F. Supp. 3d 645, 662 (E.D.N.Y. 2020). “Most courts in this district calculate simple prejudgment interest in NYLL actions from the midpoint date of the claims through the date judgment is entered.” Perez Campos v. Quentin Market Corp., No. 16-CV-5303 (DLI) (RER), 2018 WL 9945754, at *8 (E.D.N.Y. Oct. 17, 2018) (citing Fermin, 93 F. Supp. 3d at 49), report and recommendation adopted, Mar. 31, 2019 ECF Order Adopting R. & R. Under this approach, interest is to be accrued at the simple rate, from “[the] midpoint date ․ through the date judgment is entered.” Gortat v. Capala Bros., 949 F. Supp. 2d 374, 386 (E.D.N.Y. 2013) (quotation marks omitted).

Here, given that the relevant dates of Plaintiff's employment are October 16, 2022, to January 17, 2023, the midpoint of Plaintiff's claim period is December 1, 2022. The Court therefore recommends awarding prejudgment interest under the NYLL on Plaintiff's compensatory damages award of $5,569.64 from December 1, 2022, through the date of judgment at a per diem rate of $1.37 ($5,569.64 × 0.09 / 365).

C. Post-Judgment Interest

Plaintiffs are also generally entitled to post-judgment interest under 28 U.S.C. § 1961(a). Section 1961 provides that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a). 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.’ ” Castiblanco v. Don Alex Peru, Inc., No. 20-CV-2235 (MKB) (RML), 2021 WL 4755701, at *8 (E.D.N.Y. Aug. 20, 2021) (alteration in original) (quoting 28 U.S.C. § 1961(a)), report and recommendation adopted, 2021 WL 4205195 (E.D.N.Y. Sept. 16, 2021). In Fermin, the court awarded post-judgment interest on all sums awarded pursuant to the plaintiffs’ FLSA and NYLL wage-and-hour claims. 93 F. Supp. 3d at 53. The same approach is appropriate here. The Court therefore respectfully recommends an award of 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 established by 28 U.S.C. § 1961(a).

D. Retaliation Damages

The FLSA provides that an employer who violates that law's anti-retaliation provision “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [the anti-retaliation provision], including without limitation ․ the payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b); Greathouse v. JHS Sec. Inc., No. 11-CV-7845 (PAE) (GWG), 2015 WL 7142850, at *3 (S.D.N.Y. Nov. 13, 2015), report and recommendation adopted, 2016 WL 4523855 (S.D.N.Y. Aug. 29, 2016). Additionally, “[p]unitive damages may also be awarded on a case-by-case basis.” Blackwell, 2016 WL 11483834, at *7 (citing Azkour v. Little Rest Twelve, No. 10-CV-4132 (RJS), 2015 WL 631377, at *9–10 (S.D.N.Y. Feb. 12, 2015)).

Here, Plaintiff seeks $26,732.50 in back pay damages, $26,732.50 in liquidated damages, and $50,000 in emotional distress damages related to her retaliation claim. Mem., ECF 47-1, at 14–15.

1. Back Pay

Plaintiff seeks an award of $26,732.50 in lost wages to cover the period of 37 weeks between her termination in January 2023 and when she was able to find new employment. See Schlanger Decl., ECF 49, ¶ 18; Mem., ECF 47-1, at 14–15.

Plaintiffs who have been subjected to retaliatory termination “generally must use ‘reasonable diligence in finding other suitable employment’ to mitigate the degree of harm suffered.” Greathouse, 2015 WL 7142850, at *3 (quoting Dailey v. Societe Generale, 108 F.3d 451, 455 (2d Cir. 1997) (internal quotation marks omitted)). Importantly, however, “ ‘it is the defendant who has the evidentiary burden of demonstrating ․ plaintiff has failed to satisfy this duty.’ ” Id. (quoting Dailey, 108 F.3d at 456). Accordingly, a plaintiff has “no burden to carry regarding mitigation.” Azkour, 2015 WL 631377, at *8; see Greathouse, 2015 WL 7142850, at *3. “However, where a plaintiff holds a position for only a short period but then requests lost wages for an outsized number of weeks, courts in this Circuit have exercised their discretion to limit the award amount.” Marvici v. Roche Facilities Maint. LLC, No. 21-CV-4259 (AS) (JLC), 2023 WL 5810500, at *9 (S.D.N.Y. Sept. 8, 2023) (collecting cases), report and recommendation adopted, 2023 WL 6648902 (S.D.N.Y. Oct. 12, 2023).

To calculate back pay for the 37 weeks Plaintiff was unemployed following her termination, Plaintiff multiplied her average weekly wage of $722.50 by the number of weeks that she was out of work. Accordingly, Plaintiff asserts she is owed $26,732.50 ($722.50 × 37 weeks). The Court notes, however, that Plaintiff only worked for Defendants for 13 weeks. See Am. Compl., ECF 17, ¶¶ 14–15. Despite the relatively short amount of time Plaintiff worked for Defendants, the Court finds that awarding back pay for 37 weeks does not “result in a windfall for” Plaintiff. Parilla v. Salt & Pepper on 33rd St. Inc., No. 12-CV-6382 (AKH), 2013 WL 4536628, at *3 (S.D.N.Y. Apr. 8, 2013) (reducing the plaintiff's damages award for retaliatory termination to $1,000 when the plaintiff only worked for the defendant for one week). Here, the requested backpay period represents less than three times the duration of Plaintiff's employment, and courts, exercising their discretion, have found similar ratios reasonable. See Thompson, 2015 WL 5437492, at *7 (awarding the plaintiff 26 weeks of back pay, “the length of time between [the] [p]laintiff's termination and [the] [p]laintiff's counsel's request for a certificate of default,” when plaintiff was unlawfully terminated after working approximately six weeks). Accordingly, the Court respectfully recommends awarding Plaintiff back pay damages for 37 weeks at a rate of pay of $722.50 per week, for a total of $26,732.50 in back pay damages.

2. Liquidated Damages

Plaintiff also seeks liquidated damages for retaliation under the FLSA in the amount of $26,732.50. Mem., ECF 47-1, at 15. “In addition to back pay, the FLSA also permits the Court to impose the payment of ‘an additional equal amount as liquidated damages.’ ” Perry, 2022 WL 1018791, at *12 (quoting 29 U.S.C. § 216(b)). “A court may, however, reduce or eliminate the liquidated damages award if the employer shows its actions were in good faith and that it had reasonable grounds to believe its act or omission was not a violation of the FLSA.” Id. (quotation marks omitted). As discussed above, while a plaintiff who has been unlawfully terminated must mitigate damages, in this default posture, Defendants have failed to present any evidence that their actions were in good faith or that Plaintiff did not mitigate damages. See id.; Greathouse, 2015 WL 7142850, at *3–4. Accordingly, the Court respectfully recommends that Plaintiff be awarded liquidated damages for retaliation under the FLSA in the amount of $26,732.50, which is equal to the amount of her back pay.

3. Emotional Distress

Plaintiff also seeks emotional distress damages for retaliation in the amount of $50,000. Mem., ECF 47-1, at 15. While the Second Circuit has not expressly ruled on the issue of whether emotional distress damages are available under the FLSA's anti-retaliation provision, several courts have awarded such damages “in light of the FLSA's evident purpose to fully compensate victims of retaliation.” Greathouse, 2015 WL 7142850, at *3 (collecting cases); see Perry, 2022 WL 1018791, at *12–13. Awards for emotional distress in the Second Circuit “can generally be grouped into three categories of claims: ‘garden-variety,’ ‘significant[,]’ and ‘egregious.’ ” Rodriguez v. Exp. World Wide, LLC, No. 12-CV-4572 (RJD) (RML), 2014 WL 1347369, at *6 (E.D.N.Y. Jan. 16, 2014) (quoting Rainone v. Potter, 388 F. Supp. 2d 120, 122 (E.D.N.Y. 2005)), report and recommendation adopted, 2014 WL 1350350 (E.D.N.Y. Mar. 31, 2014); see Smart v. USA Lab. for Hire, Inc., No. 20-CV-5594 (TAM), 2024 WL 3313971, at *11 (E.D.N.Y. June 26, 2024), aff'd, No. 24-1791-cv, 2025 WL 1217365 (2d Cir. Apr. 28, 2025). As the court observed in Rodriguez,

[a]t the lower end of the emotional distress damages spectrum are cases involving garden-variety claims, in which damages ranging from $5,000 to $35,000 are appropriate. In such cases, the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury. The middle of the spectrum consists of significant ($50,000 up to $100,000) and substantial emotional distress claims ($100,000). These claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses. Finally, egregious emotional distress claims, where courts have upheld awards of over $100,000, have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected.

2014 WL 1347369, at *6 (quotation marks and citations omitted); see also Antoine, 489 F. Supp. 3d at 97 (“Adjusting the values above for inflation[ ] [in 2020] results in the following scale: $6,500 to $46,000 for ‘garden-variety’ cases; $65,000 to $131,000 for ‘significant’ cases; and above $131,000 in ‘egregious’ cases.”). Adjusting the values discussed in Rodriguez for inflation with the data available from June 2026 results in approximately the following ranges: $7,150 to $50,000 for garden variety; $71,500 to $143,000 for significant to substantial cases; and over $143,000 for egregious cases. CPI Inflation Calculator, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/inflation_calculator.htm (last visited July 17, 2026) (comparing values from Rodriguez in January 2014 with the values for June 2026, adjusted for inflation); see Antoine, 489 F. Supp. 3d at 97 n.11 (observing the propriety of adjusting emotional distress damages awards for inflation); Gutierrez v. Taxi Club Mgmt., Inc., No. 17-CV-0532 (AMD) (VMS), 2018 WL 3432786, at *9 (E.D.N.Y. June 25, 2018), report and recommendation adopted, 2018 WL 3429903 (E.D.N.Y. July 16, 2018).

As stated above, Plaintiff seeks $50,000 in emotional distress damages. See Mem., ECF 47-1, at 15. Plaintiff states that Defendant's unlawful termination caused her to suffer “severe mental anguish and emotional distress.” Id. However, although Plaintiff is seeking $50,000, she has failed to provide any evidence of her alleged injury or treatment as support for this claim. See generally Schlanger Decl., ECF 49 (providing no statement regarding Plaintiff's emotional distress or mental anguish). Therefore, in light of the lack of evidence to support Plaintiff's claim for emotional distress, the Court finds that an emotional distress damages award on the lower end of the garden variety range is appropriate. Accordingly, the Court respectfully recommends that Plaintiff be awarded $7,250.00 in emotional distress damages. See Perry, 2022 WL 1018791, at *13 (awarding $5,000 in emotional distress damages for unlawful termination claim where the plaintiff asserted the termination caused her to suffer “severe mental anguish and emotional distress”) (collecting cases); cf. Antoine, 489 F. Supp. 3d at 97 (discussing emotional distress damages rates, adjusted for inflation).

V. Attorney's Fees and Costs

A. Attorney's Fees

Under both the FLSA and the NYLL, a prevailing plaintiff is entitled to an award of “reasonable” attorney's fees. See 29 U.S.C. § 216(b); NYLL § 663(1). In this circuit, a reasonable attorney's fee is based on a number of factors, including the labor and skill required, the difficulty of the issues, the attorney's customary hourly rate, awards given in similar cases, and the “experience, reputation, and ability” of the attorney. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany (“Arbor Hill”), 522 F.3d 182, 186 n.3, 190 (2d Cir. 2008). Further, under the “forum rule,” courts typically assess an attorney's requested hourly rate by comparison to other rates awarded in the district in which the reviewing court sits. See Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174–75 (2d Cir. 2009).

Once a court determines the reasonable hourly rate, it must multiply that rate by the number of hours reasonably expended to determine the presumptively reasonable fee. See Arbor Hill, 522 F.3d at 190; see also Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (“Both this Court and the Supreme Court have held that the lodestar — the product of a reasonable hourly rate and the reasonable number of hours required by the case — creates a presumptively reasonable fee.” (quotation marks omitted)). With very limited exceptions, “[a]ll applications for attorney's fees” in this circuit “should normally be disallowed unless accompanied by contemporaneous time records.” Marion S. Mishkin L. Off. v. Lopalo, 767 F.3d 144, 148 (2d Cir. 2014) (quotation marks omitted); see also Universal Elec., 970 F. Supp. 2d at 127. In this district, courts have recently approved the following hourly rates: “$450–$650 for partners, $300–$450 for senior associates, $150–$300 for junior associates, and $100–$150 for paralegals.” Rubin v. HSBC Bank USA, NA, 763 F. Supp. 3d 233, 242–43 (E.D.N.Y. 2025) (observing that attorney's fees may be adjusted for inflation).

In this case, Plaintiff seeks $16,650.00 in attorney's fees for 33.30 hours, billed at a proposed rate of $500 per hour. See Mem., ECF 47-1, at 15–16; Billing Records, ECF 48-12. Based on contemporaneous records and the affirmation of Plaintiff's attorney, Mohammed Gangat, this case has been worked on by one attorney, Mr. Gangat. See Billing Records, ECF 48-12; Gangat Affirmation, ECF 48, ¶¶ 23–24. Mr. Gangat represents that he is an experienced attorney, having graduated from Georgetown University Law Center in 2009 and practiced in New York City since 2012. Gangat Affirmation, ECF 48, ¶ 26. Notably, Mr. Gangat represents that he has “extensive experience litigating unpaid wage actions on behalf of employees in New York state and federal court.” Id. As stated above, courts in this district have approved hourly rates for partners at rates between $450 and $650. See Rubin, 763 F. Supp. 3d at 242–43. Given Mr. Gangat's experience, the Court respectfully recommends finding that a $500 hourly rate is reasonable for counsel in this case. Moreover, the number of hours billed, 33.30, based on the billing records and scope of work performed by counsel, is also reasonable given the procedural history of this case. See Billing Records, ECF 48-12; Gangat Affirmation, ECF 48, ¶ 24; see also Rahman v. Red Chili Indian Cafe, Inc., No. 17-CV-5156 (RA) (BCM), 2024 WL 5402042, at *12 (S.D.N.Y. Nov. 22, 2024) (finding 59.7 hours of work on an FLSA/NYLL default matter litigated by Mr. Gangat reasonable because the plaintiffs were required to, inter alia, move for default judgment twice), report and recommendation adopted, 2025 WL 966013 (S.D.N.Y. Mar. 31, 2025); Sajvin v. Singh Farm Corp., No. 17-CV-4032 (AMD) (RER), 2018 WL 4214335, at *10 (E.D.N.Y. Aug. 13, 2018) (finding 42.9 hours worked on FLSA and NYLL default case reasonable), report and recommendation adopted, 2018 WL 4211300 (E.D.N.Y. Sept. 4, 2018). Accordingly, the Court recommends an award of $16,650.00 in attorney's fees.

B. Costs

“[A]ttorneys’ fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” Antoine, 489 F. Supp. 3d at 104 (quotation marks omitted). Plaintiff seeks $882.00 in costs. Mem., ECF 47-1, at 16; Gangat Affirmation, ECF 48, ¶ 27. These costs include the $402.00 court filing fee, $180.00 in process server fees, and $300.00 in mediator fees. The Court may take judicial notice of the $402.00 filing fee. The Court finds the process server costs and mediation fee to be documented and reasonable. See Perry, 2022 WL 1018791, at *15 (awarding the plaintiff's attorney costs for filing fee and process server fees). Accordingly, the Court recommends awarding $882.00 in costs.

CONCLUSION

For the reasons discussed above, the Court respectfully recommends that Plaintiff's motion for default judgment be granted. Plaintiff has established that Defendants (1) violated the FLSA and the NYLL with respect to Plaintiff's overtime wage claims, (2) violated the NYLL with respect to Plaintiff's spread-of-hours claim, and (3) violated the NYLL with respect to Plaintiff's WTPA claims. Additionally, Plaintiff has established that Defendants violated the anti-retaliation provision of the FLSA. Accordingly, the Court respectfully recommends that Plaintiff's motion be granted and that a default judgment be entered against Defendants.

With respect to damages, the Court recommends that Plaintiff be awarded a sum of $97,736.28, comprised as follows:

(1) $4,564.64 in compensatory damages for unpaid overtime wages;

(2) $1,005.00 in compensatory damages for unpaid spread-of-hours pay;

(3) $8,350.00 in statutory WTPA damages;

(4) $5,569.64 in liquidated damages;

(5) $26,732.50 in back pay damages for retaliatory termination;

(6) $26,732.50 in liquidated damages for retaliatory termination;

(7) $7,250.00 in emotional distress damages for retaliatory termination;

(8) $16,650.00 in attorney's fees; and

(9) $882.00 in costs.

The Court further recommends that prejudgment interest on Plaintiff's unpaid overtime wages and spread-of-hours wages of $5,569.64 be awarded at a per diem interest rate of $1.37 from December 1, 2022, to the date of the entry of final judgment, and post-judgment interest be awarded at the rate set forth in 28 U.S.C. § 1961(a). Finally, the Court recommends that Plaintiff be awarded a 15 percent increase in damages under the NYLL, not including post-judgment interest, for any amounts that are not paid within 90 days of judgment or the expiration of time to appeal, whichever is later.¹³

* * * * *

This report and recommendation will be filed electronically and a copy sent by mail to defaulting Defendants. As a courtesy, the Court also respectfully directs Plaintiff to provide a copy of this report and recommendation to Defendants forthwith and to file proof of same by August 3, 2026. Objections to this report and recommendation must be filed, with a courtesy copy sent to the Honorable Nina R. Morrison at 225 Cadman Plaza East, Brooklyn, New York 11201, within fourteen (14) days of filing. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method for computing time). Failure to file objections within the specified time waives the right to appeal both before the district court and appellate courts. See, e.g., Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object timely to a ․ report [and recommendation] operates as a waiver of any further judicial review of the magistrate [judge's] decision” (quotation marks omitted)).

SO ORDERED.

FOOTNOTES

1.   Defendants 12710 Kitchen Corp., Thakurdeen, and Singh are collectively referred to as “Defendants.”

2.   A plaintiff must also establish compliance with the procedural requirements of E.D.N.Y. Local Civil Rules 7.1, 55.1, and 55.2. Having carefully reviewed the filings in this case, the Court finds that Plaintiff's motion papers substantially comport with these rules. First, Plaintiff requested a certificate of default in accordance with Local Rule 55.1(a)(1), which was mailed to each Defendant at 12710 Liberty Avenue, Floor 2, and was further mailed to Defendant Singh at a second residential address that Plaintiff identified as associated with Defendant Singh. See Req. for Certificate of Default, ECF 51; Chen Suppl. Affirmation, ECF 53; Affirmation of Service, ECF 53-1. Second, Plaintiff has demonstrated that Defendants have failed to defend the action and that the pleadings were properly served. See Aff. of Service, ECF 4 (proof of service as to Defendant 12710 Kitchen Corp); Aff. of Service, ECF 5 (proof of service as to Defendant Thakurdeen); Aff. of Service, ECF 20 (proof of service as to Defendant Singh); see also Aff. of Service, ECF 21 (mailing and emailing of amended complaint to Defendants 12710 Kitchen Corp. and Defendant Thakurdeen). Third, Plaintiff demonstrated that Defendants are not minors, incompetent, or subject to the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. § 3931. Gangat Affirmation, ECF 48, ¶ 28; Ex. O, SCRA Affs., ECF 48-15; Chen Suppl. Affirmation, ECF 53, ¶ 3. Finally, Plaintiff has certified the mailing of all of the default motion papers to Defendant 12710 Kitchen Corp.’s last known address and Defendants Thakurdeen and Singh's last known residence, in accordance with Local Rule 55.2(a)(3). See Chen Suppl. Affirmation, ECF 53, ¶ 5 (representing that the default motion papers were mailed to Defendants); Affirmation of Service, ECF 53-1 (same). The Court further notes that Defendants Thakurdeen, Singh, and 12710 Kitchen Corp. have previously appeared in this case and willfully defaulted. See Answer, ECF 8 (answer to original complaint filed on behalf of Defendants Thakurdeen and 12710 Kitchen Corp. by former counsel); June 23, 2025 ECF Min. Entry & Order (appearances by Defendants Thakurdeen and Singh, pro se).

3.   The Court notes that Plaintiff's papers request $26,732.50 in liquidated damages for back pay due to her retaliatory termination, but that this request was not included in Plaintiff's notice of motion. Compare Mot., ECF 47, with Proposed J., ECF 50. The Court is mindful that “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c). Because Plaintiff included all of the categories of damages she seeks in the amended complaint and, more specifically, listed the requested back pay liquidated damages in the proposed judgment as well as Plaintiff's memorandum in support of the default motion, all of which were served on Defendants, the Court finds that Defendants were put on notice of the liquidated damages associated with the retaliatory termination allegation. Am. Compl., ECF 17, at ECF pp. 12–13 (prayer for relief); Mem., ECF 47-1, at 15; Proposed J., ECF 50; see Chen Suppl. Affirmation, ECF 53, ¶ 5; Affirmation of Service, ECF 53-1.

4.   New York state law provides that service may be completed upon an individual by delivering the summons and complaint “to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode” and by mailing the summons to the individual's last known residence or place of business. N.Y. C.P.L.R. § 308(2); see Templos v. Luna Cuisine, Inc., 738 F. Supp. 3d 325, 331 (E.D.N.Y. 2024).

5.   The Court notes that while the recent mailings to Defendant Singh were returned as undeliverable, only the Court's September 25, 2025 mailing to Defendant Thakurdeen was returned as undeliverable. Compare Mail Returned as Undeliverable, ECF 54 (mailing to Defendant Singh on September 2, 2025 returned as undeliverable), ECF 55 (same, regarding mailing on August 15, 2025), ECF 56 (same, regarding mailing on September 25, 2025), ECF 57 (same, regarding mailing on September 2, 2025), with ECF 58 (mailing to Defendant Thakurdeen on September 25, 2025 returned as undeliverable).

6.   The Court notes that Plaintiff alleges willful violations of the FLSA by Defendants. See, e.g., Am. Compl., ECF 17, ¶ 50 (“Due to the intentional, willful, and unlawful acts of Defendants, Plaintiff suffered damages” under the FLSA). Willful FLSA claims present a higher pleading burden than ordinary FLSA claims but allow plaintiffs to take advantage of a three-year statute of limitations. See Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 320–25 (2d Cir. 2021) (discussing 29 U.S.C. § 255). As stated above, Plaintiff filed her claims within the two-year statute of limitations for ordinary FLSA claims. The Court therefore need not assess whether Plaintiff has adequately established willfulness “as an independent element of [her] claims.” Id. at 322.

7.   The Court notes that although Plaintiff conclusorily alleges a claim for unpaid minimum wages, Am. Compl., ECF 17, ¶¶ 2, 27, she seeks damages based on her overtime and spread-of-hours claims, Mem., ECF 47-1, at 9–11. Under New York's Hospitality Industry Wage Order, Plaintiff's regular rate of pay must be calculated by dividing her weekly pay by 40 hours, which indicates that Plaintiff was paid $18.06 per hour, a rate that exceeded the applicable mandatory minimum wage at the time. During the entirety of Plaintiff's alleged employment by Defendants, October 16, 2022, through January 17, 2023, the minimum wage for New York City businesses with 10 or fewer employees was $15.00 per hour. NYLL § 652(1)(a)(i); History of the Minimum Wage in New York State, N.Y. State Dep't of Lab., available at https://dol.ny.gov/history-minimum-wage-new-york-state (last visited July 16, 2026) [https://perma.cc/LVN7-35NP]. As an employee covered by the Hospitality Industry Wage Order, as explained in further detail infra, notwithstanding that Plaintiff worked 73.50 hours per week for the first week and 51.25 hours per week for the rest of her employment, Plaintiff's hourly wage is calculated by dividing her weekly rate by 40 hours. See Chavez v. Roosevelt Tropical Corp., No. 23-CV-2413 (EK) (PK), 2024 WL 4244087, at *7 (E.D.N.Y. Aug. 21, 2024), report and recommendation adopted, 2024 WL 4242218 (E.D.N.Y. Sept. 18, 2024). Therefore, Plaintiff has alleged that her regular rate of pay for the duration of her employment was $18.06, which is greater than the New York minimum wage at the time. Accordingly, Plaintiff is not entitled to minimum wage damages.

8.   Plaintiff alleges that for the remaining twelve weeks of her employment, she worked five days per week “from about 6:00 p.m. to between 4:00 and 4:30 a.m.” Am. Compl., ECF 17, ¶ 20. The Court calculates Plaintiff's hours worked per day by calculating the number of hours between 6:00 p.m. to 4:15 a.m., which results in 10.25 hours per day. Accordingly, as Plaintiff worked five days per week, Plaintiff worked approximately 51.25 hours per week for the remaining twelve weeks of her employment.

9.   The Court notes that the checks submitted along with Plaintiff's default motion papers reflect payments to Plaintiff ranging from $150.00 to $1,015.00. See generally Paychecks, ECF 48-10. While these checks are dated, they do not indicate the employment date range that the various payments are associated with. Accordingly, the Court adopts Plaintiff's alleged average weekly pay of $722.50, based on the allegations in Plaintiff's amended complaint as well as Plaintiff's declaration. Am. Compl., ECF 17, ¶ 21; Schlanger Decl., ECF 49, ¶ 11; see J & J Sports Prods., Inc. v. Ahuachapan Corp., 422 F. Supp. 3d 652, 663 (E.D.N.Y. 2019) (citing CIT Bank, N.A. v. Dambra, No. 14-CV-3951 (SLT) (VMS), 2015 WL 7422348, at *5 (E.D.N.Y. Sept. 25, 2015); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991))); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (explaining that courts can assess damages based on “ ‘detailed affidavits and documentary evidence’ ” (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (noting that in the default posture, the moving party is “entitled to all reasonable inferences from the evidence offered”).

10.   Period 2, which spans from October 23, 2022, to January 17, 2023, included approximately 12 weeks of work, given Plaintiff's allegation that she worked Wednesday to Sunday and the fact that January 17, 2023, was a Tuesday. Throughout Plaintiff's motion, Plaintiff's wage deficiency is calculated on the basis of 12 weeks of employment during Period 2; the Court adopts the same approach. See Mem., ECF 47-1, at 10–11.

11.   The applicable minimum wage during Plaintiff's employment was $15.00 per hour. See supra n.7.

12.   It appears that Plaintiff miscalculated the statutory damages for Defendants’ violation of § 195(1), by using 83 days rather than 67, the number of work days actually worked, for the calculation. Mem., ECF 47-1, at 14; see NYLL §§ 198(1-b), 198(1-d) (specifying damages “for each work day”); see also Nam v. Ichiba Inc., No. 19-CV-1222 (KAM) (RML), 2021 WL 878743, at *9–10 (E.D.N.Y. Mar. 9, 2021); Lu Nan Fan v. Jenny & Richard's Inc., No. 17-CV-6963 (WFK) (RLM), 2019 WL 1549033, at *12 (E.D.N.Y. Feb. 22, 2019), report and recommendation adopted, 2019 WL 1547256 (E.D.N.Y. Apr. 9, 2019).

13.   The New York Labor Law provides that “[a]ny judgment or court order awarding remedies under this section shall provide that if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.” NYLL § 198(4); see also Rodriguez v. Solares Corp., No. 16-CV-3922 (CBA) (SMG), 2018 WL 7252949, at *11–12 (E.D.N.Y. Aug. 14, 2018), report and recommendation adopted, 2019 WL 486883 (E.D.N.Y. Feb. 7, 2019). The increase applies only to damages awarded under state law. See Rodriguez, 2018 WL 7252949, at *12 (recommending that the 15 percent increase provided for under NYLL § 198(4) be limited to amounts “awarded exclusively under the NYLL”); De la Cruz Casarrubias v. Surf Ave Wine & Liquor Inc., No. 20-CV-3003 (AMD) (RLM), 2021 WL 2227977, at *13 (E.D.N.Y. May 11, 2021) (citing Rodriguez and limiting conditional 15 percent increase to damages awarded under the NYLL), report and recommendation adopted, 2021 WL 2223275 (E.D.N.Y. June 2, 2021). Accordingly, Plaintiff's damages under the NYLL should be increased by 15 percent for any amounts unpaid after 90 days following the issuance of judgment or the expiration of the time to appeal. See Gonzalez-Diaz v. Daddyo's Mgmt. Grp. Inc., No. 16-CV-1907 (ENV) (RML), 2017 WL 7625319, at *7 (E.D.N.Y. Nov. 7, 2017) (recommending that the total amount of the judgment automatically increase if any amount remained unpaid upon the expiration of 90 days following issuance of the judgment), report and recommendation adopted, Dec. 12, 2017 ECF Order Adopting R. & R.

TARYN A. MERKL UNITED STATES MAGISTRATE JUDGE