Opinion
21-CV-123 (PGG) (OTW)
05-09-2023
ALEJANDRO ZAPOTECO, Plaintiff, v. SAROOP & SONS INC., et al., Defendants.
REPORT & RECOMMENDATION TO THE HONORABLE PAUL G. GARDEPHE
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE:
I. Introduction
Plaintiff Alejandro Zapoteco (“Plaintiff”) brought this case against Defendants Saroop & Sons Inc. (d/b/a Saroop & Sons), Noor Live Poultry Corp. (d/b/a Noor Live Poultry Market), and Prandit Saroop (collectively “Defendants”) for unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”), violations of the N.Y. Labor Law §§ 190 et seq. and 650 et seq. (“NYLL”), and the “spread of hours” and overtime wage orders of the New York Commissioner of Labor codified at 12 N.Y.C.R.R. § 146-1.4 (“NYCRR”). (ECF 1 at ¶ 10). Plaintiff moves for liquidated damages, pre- and post-judgment interest, attorney's fees, and costs. (ECF 1 at ¶10).
On July 28, 2021, the Honorable Paul G. Gardephe entered an order of default against Defendants. (ECF 40). The matter was then referred to me by Judge Gardephe for an inquest into damages. (ECF 39). For the following reasons, I recommend that Plaintiff be awarded $162,155, plus pre-judgment interest to be calculated by the Clerk of Court.
II. Background
Plaintiff was employed as a chicken cutter and deboner by Defendants at their meat market located in the Bronx, New York. (ECF 45 at ¶ 12). Defendants own, operate, or control a poultry market, located at 2164 Webster Ave., Bronx, NY 10457, under the name “Noor Live Poultry Market” (previously “Saroop & Sons”). (ECF 1 at ¶ 2). Plaintiff was employed by Defendants from approximately March 1, 2018, to December 6, 2020. (ECF 45 at ¶ 15).
From March 1, 2018, to February 15, 2020, Plaintiff worked from 8:00 a.m. to 4:00 p.m. on Mondays through Saturdays, and from 8:00 a.m. to 2:00 p.m. on Sundays, totaling 54 hours per week. (ECF 45 at ¶ 16). Throughout this timeframe, Defendants paid Plaintiff a fixed salary of $430 per week. (ECF 45 at ¶18).
From February 16, 2020, to December 6, 2020, Plaintiff worked from 7:30 a.m. to 6:20 p.m. on Mondays through Saturdays, and from 7:30 a.m. to 4:30 p.m. on Sundays, totaling 74 hours per week. (ECF 45 at ¶ 17). During this timeframe, Defendants paid Plaintiff a fixed salary of $600 per week. (ECF 45 at ¶ 19).
In ECF 45, Plaintiff's Declaration in support of his motion for default judgment, Plaintiff writes that the start date of this time period was February 2018. (ECF 45 at ¶ 17). However, on the chart provided in Exhibit 10 to ECF 45, the time period starts on February 16, 2020. Based upon the Court's review of the Exhibit and the record as a whole, the Court assumes the accurate start of the relevant period to be 2020, not 2018.
In New York, the applicable minimum wage for businesses with ten or fewer employees was $12 per hour until December 31, 2017. 12 N.Y.C.R.R. § 146-1.4. The minimum wage then increased to $13.50 per hour on December 31, 2018, and further increased to $15 per hour on December 31, 2019. 12 N.Y.C.R.R. § 146-1.4. Plaintiff's salaries during both timeframes, $10.75 and $7.96,were both below the minimum wage. (ECF 44 at 3).
$430/40 hours = $10.75 per hour.
$430/54 hours= $7.96 per hour.
During Plaintiff's employment for Defendants, he was not provided any written notice of his rate of pay or his employer's regular pay day. (ECF 45 at ¶ 20). Defendants did not post this information at the workplace, or otherwise provide to employees the wage and hour requirements of the FLSA and NYLL. (ECF 1 at ¶ 56). Defendants did not provide Plaintiff with any documentation accurately accounting for all his actual hours worked or setting forth the rate of pay for all his hours worked. (ECF 45 at ¶ 20). Furthermore, Defendants paid Plaintiff's wages in cash and required that Plaintiff purchase his own “tools of the trade” including “gloves, masques, alcohol, and knife sharpeners” each week. (ECF 45 at ¶ 21).
III. Discussion
A. Inquest Standard
Even though a complaint's factual allegations are presumed true in the event of a default, damages allegations are not entitled to the same presumption. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Plaintiff must still supply an evidentiary basis for the specific damages amount sought. Santana v. Latino Express Restaurants, Inc., 198 F.Supp.3d 285, 292 (S.D.N.Y. Jul. 28, 2016). Where the defendants fail, however, to provide any records of wages or hours, Plaintiff's “recollection and estimates of hours worked are presumed to be correct.” Chen v. Jenna Lane, Inc., 30 F.Supp.2d 622, 624 (S.D.N.Y. Dec. 10, 1998).
B. Jurisdiction
This Court has subject-matter jurisdiction over Plaintiff's FLSA claims based on federal question jurisdiction. 28 U.S.C. § 1331; 29 U.S.C. § 216. Because of the Court's original jurisdiction over the FLSA claims, this Court may also exercise supplemental jurisdiction over Plaintiff's NYLL and NYCRR claims, which cover the same unpaid wages injury. 28 U.S.C. § 1367(a) (permitting supplemental jurisdiction over “claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”).
C. FLSA Standard
In an FLSA action, where there is an absence of rebuttal by the defendant, a plaintiff's recollection and estimates of hours worked are presumed to be correct. Liu v. Jen Chu Fashion Corp., 00-CV-4221, (RJH) (AJP), 2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004) (Peck, J.) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) (“[A]n employee has carried out his burden [of production under the FLSA] if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work by just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate”)).
Plaintiff has adequately proven that he performed work for Defendants and was improperly compensated. Plaintiff has additionally produced sufficient evidence of the amount and extent of his work. Defendants have failed to appear and have accordingly failed to provide their own evidence regarding the work performed by Plaintiff, or to negate the inferences drawn in Plaintiff's favor. Therefore, the Court may award damages to Plaintiff.
D. Damages
1. Wage Damages
The FLSA provides that “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C § 206 (a). The minimum wage at the time of this action was at $7.25. (ECF 43 at ¶ 12); 29 U.S.C § 206 (a)(1)(D). Furthermore, the FSLA asserts that unless otherwise provided under 29 U.S.C. § 207, no employer shall employ any of his employees “for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207 (a)(1).
The NYLL provides that:
[e]very employer of ten or less employees shall pay to each of its employees for each hour worked in the city of New York a wage of not less than...$12.00 per hour on and after December 31, 2017, $13.50 per hour on and after December 31, 2018, $15.00 per hour on and after December 31, 2019, or, if greater, such other wage as may be established by federal law pursuant to 29 U.S.C. section 206 or its successors or such other wage as may be established in accordance with the provisions of this article.
N.Y. Lab. Law § 652 (1)(a)(iii). The NYLL incorporates the FLSA standard: “[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 hours worked in excess of forty hours in one work week.” 12 N.Y.C.R.R. § 1461.4. Under both the FLSA and NYLL, “there is a presumption that such a weekly salary covers only the first forty hours, unless the parties ‘intend and understand the weekly salary to include overtime hours at the premium rate.'” Guallpa v. N.Y. Pro Signs Inc., 11-CV-3133 (LGS) (FM), 2014 WL 2200393, at *3 (S.D.N.Y. May 27, 2014), report and recommendation adopted sub nom. Guallpa v. NY Pro Signs Inc., 11-CV-03133 (LGS), 2014 WL 4105948 (S.D.N.Y. Aug. 18, 2014) (quoting Giles v. City of New York, 41 F.Supp.2d 308, 317 (S.D.N.Y. Mar. 10, 1999) (emphasis in original).
Here, Plaintiff worked in excess of forty hours per week while being paid below minimum wage. Because Defendants have defaulted, there is an absence of rebuttal by the Defendants, and accordingly Plaintiff's recollection and estimates of hours worked are presumed to be correct. Liu, 2004 WL 33412, at *3. The calculation is as follows:
The minimum wage was $12 per hour on and after December 31, 2017, $13.50 per hour on and after December 31, 2018, and $15 per hour on and after December 31, 2019.
From March 1, 2018, until February 15, 2020, Plaintiff worked 54 hours per week for $430, a rate of $7.96 per hour. (ECF 45 at ¶¶ 16 and 18). This was below the minimum wages of: $12 per hour for March 1, 2018, to December 30, 2018; $13.50 for December 31, 2018, to December 30, 2019; and $15 from December 31, 2019, to February 15, 2020. (ECF 45 at ¶¶ 16 and 18). From February 16, 2020, until December 6, 2020, Plaintiff worked 74 hours per week for $600, a rate of $8.10 per hour, which is below the minimum wage of $15 per hour during that time period. (ECF 45 at ¶¶ 17 and 19).
As for overtime, there is no evidence suggesting the parties intended and understood the weekly salary to include overtime at the premium rate. Accordingly, the presumption that the weekly salary covers only the first forty hours remains. Plaintiff worked 10 hours of overtime per week when he worked 54 hours per week, and 34 hours of overtime per week when he worked 74 hours per week.
2. Calculation of Wage Damages
Plaintiff provided a breakdown of the difference between the amount paid and the amount owed for each year based upon unpaid minimum wage and overtime compensation. (ECF 45 at Ex. 9). Based on the below calculation, I find Plaintiff's breakdown accurate and reasonable.
Plaintiff worked 54 hours per week for 43 weeks from March 1, 2018, until December 30, 2018. A lawful paycheck including both minimum wage and overtime would have amounted to $732 per week.(ECF 45 at Ex. 9). Accordingly, Plaintiff was owed the difference between his actual pay and his lawful pay, $302 per week for 43 weeks, totaling $12,986. (ECF 45 at Ex. 9).
Minimum wage was $12 per hour and minimum overtime was $18 per hour.
$302 x 43 weeks = $12,986.
Starting December 31, 2018, the minimum wage changed to $13.50 per hour. N.Y.L.L. § 652 (1)(a)(iii). Plaintiff worked 54 hours per week for 52 weeks from December 31, 2018, until December 30, 2019. A lawful paycheck including both minimum wage and overtime would have amounted to $823.50 per week. (ECF 45 at Ex. 9). Accordingly, Plaintiff was owed the difference between his actual pay and his lawful pay, $398.50 per week for 52 weeks, totaling $20,462. (ECF 45 at Ex. 9).
Minimum wage was $13.50 per hour and minimum overtime was $20.25 per hour.
Beginning December 31, 2019, the minimum wage increased to $15 per hour. N.Y.L.L. § 652 (1)(a)(iii). Plaintiff worked for 54 hours per week for 7 weeks from December 31, 2019, until February 15, 2020. (ECF 45 at Ex. 9). A lawful paycheck including both minimum wage and overtime would have amounted to $915 per week.Accordingly, Plaintiff was owed the difference between his actual pay and his lawful pay, $485 per week, totaling $3,395. (ECF 45 at Ex. 9).
Minimum wage was $15 per hour and minimum overtime was $22.50 per hour.
Lastly, Plaintiff worked 74 hours per week for 42 weeks from February 16, 2020, until December 6, 2020. (ECF 45 at ¶ 17, Ex. 9). A lawful paycheck including both minimum wage and overtime would have amounted to $1,365.50 per week.Accordingly, Plaintiff was owed the difference between his actual pay and his lawful pay, $765 per week for 42 weeks, totaling $32,130. (ECF 45 at Ex.9).
Minimum wage was $15 per hour and minimum overtime was $22.50 per hour.
Plaintiff should accordingly be awarded a total of $68,973 for damages for unpaid minimum wage and overtime compensation for his work from March 1, 2018, to December 6, 2020.
3. Liquidated Damages
Plaintiff further seeks liquidated damages in relation to his unpaid wages claim under the NYLL. (ECF 43 at ¶¶ 27-31). Liquidated damages of 100% of the owed wages are appropriate for an unpaid wage claim “unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law.” N.Y.L.L. § 198 (1-a); see e.g. McLean v. Garage Management Corp., 10-CV-3960 (DLC), 2012 WL 1358739, at *8 (S.D.N.Y. Apr. 19, 2012). By defaulting, Defendants have not provided any good faith justification for failing to pay Plaintiff his wages. See Burns v. Scott, 20-CV-10518 (JGK), 2022 WL 10118491, at *12 (S.D.N.Y. Oct. 17, 2022) (awarding liquidated damages of 100% of unpaid wages where defendants had defaulted); see also Schalaudek v. Chateau 20th Street LLC, 16-CV-11 (WHP) (JLC), 2017 WL 729544, at *10 (S.D.N.Y. Feb. 24, 2017). Accordingly, Plaintiff is entitled to an additional $68,973 in liquidated damages under the NYLL.
4. Notice Damages
Plaintiff brings a claim for failure to provide proper wage notices under N.Y.L.L. § 195(1)(3). (ECF 43 at ¶ 32). Under the NYLL, employers are required to provide a written notice containing, inter alia, the rate of pay and the designated pay day. N.Y.L.L. § 195(1)(a). The NYLL imposes statutory damages of $50 per day for a defendant's failure to provide the wage notice “within ten business days of his or her first day of employment,” up to a maximum of $5,000. N.Y.L.L. § 198(1-b). Furthermore, under the NYLL, employers are also required to furnish each employee with a statement with every payment of wages containing, inter alia, the dates of work covered by the payment of wages, the rate or rates of pay and basis thereof, gross wages, deductions, and allowances. N.Y.L.L. § 195(3). The NYLL imposes statutory damages in the amount of $250 per day up to a $5,000 maximum. N.Y.L.L. § 198(1-d).
Here, Defendants failed to provide Plaintiff with any written notices either in English or in Spanish, Plaintiff's primary language. Accordingly, Plaintiff shall be awarded $5,000 for failure to provide wage notice under N.Y.L.L. § 195(1)(a) and $5,000 for failure to provide statements for each payment of wages under N.Y.L.L. § 195(3).
5. Spread of Hour Pay
Under “spread of hours” law, as codified in the NYCRR, the spread of hours is the “length of the interval between the beginning and end of an employee's workday.” 12 N.Y.C.R.R. § 146-1.6. A plaintiff may receive an additional hour of pay at the basic minimum hourly rate on each day on which the spread of hours exceeds 10 hours. 12 N.Y.C.R.R. § 146-1.6(a); 12 N.Y.C.R.R. § 142-2.4.; see Angamarca v. Pita Grill 7 Inc., 11-CV-7777 (JGK) (JLC), 2012 WL 35778781, *6 (S.D.N.Y. Aug. 2, 2012). Spread of hours “includes working times plus time off for meals plus intervals off duty.” 12 N.Y.C.R.R. § 146-1.6. A plaintiff is entitled to “one hundred percent of liquidated damages on his spread of hours.” N.Y.L.L. § 198 (1-a); see e.g., Nana v. Le Viking LLC, 17-CV-928 (CM) (OTW), 2019 WL 3244181, at *3 (S.D.N.Y. Jul. 19, 2019).
Here, Plaintiff worked from March 1, 2018, until February 15, 2020, from 8:00 a.m. to 4:00 p.m. Monday through Saturday, and 8:00 a.m. to 2:00 p.m. on Sunday. (ECF 45 at ¶ 16). Through this period of employment, Plaintiff worked 8 hours per day and 6 hours per day, both below 10 hours.However, from February 16, 2020, until December 6, 2020, Plaintiff worked from 7:30 a.m. to 6:20 p.m. on Mondays through Saturdays, and from 7:30 a.m. to 4:30 p.m. on Sundays. (ECF 45 at ¶ 17). During this time period, Plaintiff worked eleven hours per day on Monday to Saturday, and nine hours per day on Sunday.
A workday beginning at 8:00 a.m. until 4:00 p.m. would equal out to eight-hours and a workday beginning from 8:00 a.m. to 2:00 p.m. equals out to six-hours.
Plaintiff is entitled to recover compensation for “spread of hours” wages when he worked eleven hours per day on Mondays to Saturdays, February 2020 to December 2020, 6 days a week for 42 weeks. (ECF 45 at ¶ 17). Plaintiff is entitled to an additional hour per day in the applicable time period at the rate of minimum wage, $15 per hour, for 252 days. Accordingly, Plaintiff should be awarded $3,780 for spread of hours wages plus $3,780 in liquidated damages, for a total of $7,560.
43 weeks x 6 days = 252 days.
$15 x 252 = $3,780.
6. Tools of the Trade
An employer violates the FLSA if it requires an employee to purchase “tools of the trade which will be used in or are specifically required for the performance of the employer's particular work” and “the cost of such tools cuts into the minimum or overtime wages required to be paid to [the employee].” 29 C.F.R. § 531.35; Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442, 476 (S.D.N.Y. Aug. 12, 2015). The same holds true under New York law. 12 N.Y.C.R.R. § 146-2.7(c) (“If an employee must spend money to carry out duties assigned by his or her employer, those expenses must not bring the employee's wage below the required minimum wage”); Lin v. Benihana Nat'l Corp., 755 F.Supp.2d 504, 511-12 (S.D.N.Y. Dec. 15, 2010).
Here, Defendants required Plaintiff to purchase gloves, masques, alcohol, and knife sharpeners to perform his job. (ECF 43 at ¶ 34). Plaintiff was also required to purchase uniforms and hairnets out of his own funds in order to work for the Defendants and states that he spent a total of $1,320 on these items. (ECF 44 at 4-5). Plaintiff is entitled to recover the costs of those purchases and should be awarded $1,320.
E. Pre- and Post-Judgment Interest
Plaintiff prevailed on his NYLL claim by virtue of default judgement and can also recover pre-judgment interest. N.Y.L.L. § 198 (1-a); N.Y.C.P.L.R. § 5001. Prejudgment interest is intended to “compensate a plaintiff for lost use of money owed” and therefore does not apply to liquidated damages. See e.g., Tackie v. Keff Enter. LLC, 14-CV-2074 (JPO), 2014 WL 4626229, at *5 (S.D.N.Y. Sept. 16, 2014); Nana, 2019 WL 3244181 at *6 (quoting Mosso-Salazar v. New Lexington Corp., 18-CV-2505 (GBD) (SDA), 2018 WL 6288137, at *5 (S.D.N.Y. Sept. 4, 2018)). New York law provides that interest shall be calculated at nine percent per year. N.Y.C.P.L.R. § 5004. Where, as here, the damages were incurred at various times, interest would run from either “the date it was incurred or upon all of the damages from a single reasonable intermediate date.” See N.Y.C.P.L.R. § 5001(b).
Plaintiff seeks pre-judgment interest for his compensatory damages based on minimum wage, overtime, and spread of hours violations. (ECF 43 at ¶¶ 35-36). Since damages were incurred at various times and varied based on the prevailing minimum wage in the applicable time period, I find that Plaintiff's proposed date of the midpoint between Plaintiff's claims, July 16, 2019, is reasonable. Accordingly, Plaintiff should be awarded pre-judgment interest of nine percent per annum from July 16, 2019, through the date of judgment, to be calculated by the Clerk of Court.
Plaintiff moves for post-judgment interest under 28 U.S.C. § 1961(a). (ECF 43 at ¶ 38). The Court further recommends the awarding of post-judgment interest under 28 U.S.C. § 1961. “Such interest shall be calculated from the date of the entry of the 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. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges.” 28 U.S.C. § 1961 (a); see Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008) (affirming that post-judgment interest is mandatory for civil judgments in federal district courts); Nana, 2019 WL 3244181 at *6.
F. Attorneys' Fees and Costs
1. Fees
Plaintiff's success on his NYLL claim further entitles him to an award of attorney's fees. N.Y.L.L. § 198 (1-a). The Court has “considerable discretion” in determining a reasonable fee. See Matusick v. Erie County Water Auth., 757 F.3d 31, 64 (2d Cir. 2014). “Reasonableness” entails examining both the attorney's hourly rate and the hours expended on the matter. Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011). In assessing the reasonableness of hours spent, the Court examines whether a “reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Where the amount billed is excessive, the Court “should reduce the stated hours accordingly.” Cocoletzi v. Fat Sal's Pizza II, Corp., 15-CV-2696 (CM) (DF), 2019 WL 92456, at *11 (S.D.N.Y. Jan. 3, 2019). The Court will also factor into the “reasonableness” of the fee “the complexity and difficulty of the case.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008).
The Court can draw upon its own knowledge as to market rates as well as rely on submissions from the parties in determining attorney's fees. Adorno v. Port Auth., 685 F.Supp.2d 507, 511-12 (S.D.N.Y. 2010). Relevant factors include the attorney's experience in the field, what similar attorneys in the district charge, and what other clients pay for similar services. Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d, at 191. Larger law firms and litigators with decades of experience are typically awarded higher rates. Nana, 2019 WL 3244181 at *6.
Plaintiff's counsel, Mr. Michael Faillace, submitted his billing records on this matter, for which he charged $6,410 for fees, based on his rate of approximately $328.72 per hour, and $851 for costs. (ECF 45 at Ex. 10). Mr. Faillace has substantial experience with employment law and employment discrimination. (ECF 45 at ¶ 38). However, courts in this district generally award rates lower than those requested by Plaintiff in similar cases even where the attorneys have decades of experience. See, e.g., Pascuiti v. New York Yankees, 108 F.Supp.2d 258, 266 (S.D.N.Y. Jul. 12, 2000) (rejecting billing rate of $325 per hour for attorneys with almost 30 years experience in civil rights litigation and concluding $250 per hour as reasonable); see also, Shannon v. Fireman's Fund Ins. Co., 156 F.Supp.2d 279, 299 (S.D.N.Y. Jun. 7, 2001) (asserting the range of fees in this District for “seasoned civil rights litigators” particularly those in small firms, is between $200 per hour and $300 per hour). Without any information provided about the firm's size or the particular complexity of this case (or lack thereof), the Court finds that Mr. Faillace's rate is $250 per hour, in accordance with the rates awarded to small firms in isimilar cases. Accordingly, I recommend that the Court award Plaintiff $4,875 for attorney's fees for 19.5 hours of work.
2. Costs
The FLSA and NYLL also provide that a successful plaintiff may be entitled to costs, which “include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (quoting U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir. 1989)). Here, Plaintiff's counsel has requested $851 in costs, consisting of: $79 for service on George Portoreal; $218 for service on Maria Perez; $402 for the complaint's filing fee; $76 for service on Saroop & Sons; and $76 for service on Noor Live Poultry, Corp. (ECF 43 at Ex. 10). Upon a review of the record, the Court finds that “George Protoreal” and “Maria Perez” are not names involved in this action, and concludes they were erroneously included within Plaintiff's application for costs. The Court will accordingly deduct the charges for service on George Portoreal and Maria Perez, and recommends that Plaintiff be awarded $554 for costs.
IV. Conclusion
For the foregoing reasons, I recommend that the Court award judgment for Plaintiff against Defendants Saroop & Sons Inc., Noor Live Poultry Corp., and Prandit Saroop for the amount of $162,155 broken down as follows: $137,946 for wage damages; $10,000 for notice damages; $7,560 for spread of hours; $1,320 for tools of the trade; $4,875 for attorney's fees; $554 for costs; plus additional pre-judgment interest to be calculated by the Clerk of Court from July 16, 2019, to the date of judgment at a rate of nine percent per annum.
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007 and addressed to the Honorable Paul G. Gardephe, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Plaintiff shall serve a copy of this Report & Recommendation on Defendants and file proof of service on the docket.
Respectfully submitted,