United States District Court, S.D. New York
REPORT AND RECOMMENDATION
JAMES C. FRANCIS, IV, Magistrate Judge.
The plaintiff, Jose Castellanos, brings this action pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA") and New York Labor Law and its implementing regulations ("NYLL") against the Mid Bronx Community Housing Management Corporation ("MBCHMC") for failing to compensate him for overtime hours worked. The Honorable John G. Koeltl, U.S.D.J., granted judgment by default against MBCHMC and referred this case to me for the calculation of damages. (Order of Default dated January 31, 2014).A hearing was held on April 11, 2014; notice was sent to the defendant but was returned as undeliverable. The following findings are therefore based on evidence presented at the hearing and information submitted by the plaintiff. For the reasons set forth below, the plaintiff should be awarded damages in the amount of $14, 397.60. In addition, the plaintiff should be granted attorneys' fees and costs in the amount of $7, 012.50.
MBCHMC is a New York corporation engaged in housing development, property management, and economic development in the Bronx, with annual gross revenue over $500, 000. (Complaint ("Compl."), ¶¶ 6-7, 9). The plaintiff is a resident of New York who performed cleaning and maintenance duties at MBCHMC from June 2007 until August 2012. (Compl., ¶¶ 11, 14; Plaintiff's Affidavit of Damages ("Pl. Aff."), attached as Exh. A to Proposed Findings of Fact and Conclusions of Law ("Findings of Fact"), ¶ 4). Although he worked 42.5 hours per week, Mr. Castellanos only received his regular wage rate of $8.00 per hour and was never paid overtime wages. (Compl., ¶¶ 15-18, 28-29, 41; Pl. Aff., ¶¶ 5-6). Mr. Castellanos ini tiated the present action on May 6, 2014, seeking unpaid overtime compensation and liquidated damages for allegedly willful violations of the FLSA and NYLL, together with attorneys' fees and costs. (Compl., ¶¶ 1-2, 32, 34, 36-38, 44).
This Court has subject matter jurisdiction over the plaintiff's FLSA claim pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 216(b), and supplemental jurisdiction over the NYLL claim pursuant to 28 U.S.C. § 1367.As a corporation organized under the laws of New York, MBCHMC is subject to personal jurisdiction in this Court pursuant to New York Civil Practice Law and Rules § 301, and venue is proper in this district pursuant to 28 U.S.C. § 1391.
Where a defendant has defaulted, all of the facts alleged in the complaint, except those relating to the amount of damages, must be accepted as true. See Transatlantic Marine Claims Agency v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Lenard v. Design Studio, 889 F.Supp.2d 518, 526-27 (S.D.N.Y. 2012) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). Nonetheless, a court "must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed." Jemine v. Dennis, 901 F.Supp.2d 365, 373 (E.D.N.Y. 2012); see also GAKM Resources LLC v. Jaylyn Sales Inc., No. 08 Civ. 6030, 2009 WL 2150891, at *2 (S.D.N.Y. July 20, 2009).
Here, the allegations contained in the Complaint establish the defendant's liability under both the FLSA and NYLL. Mr. Castellanos is a "covered employee" under the FLSA, 29 U.S.C. § 203(e), a term that includes individuals performing "cleaning and maintenance." (Complaint, ¶ 14); see Berrezueta v. Royal Crown Pastry Shop, Inc., No. 12 CV 4380, 2013 WL 6579799, at *2, 7 (E.D.N.Y. Dec. 16, 2013) (granting default judgment on plaintiff's FLSA and NYLL claims based on employment as cleaner and maintenance worker); Cruz v. Rose Associates, LLC, No. 13 Civ. 112, 2013 WL 1387018, at *3 (S.D.N.Y. April 5, 2013) (finding that maintenance workers are covered employees under the FLSA). He is also covered under NYLL, which "defines... employee' in the same broad manner as the FLSA." Campos v. Lemay, No. 05 Civ. 2089, 2007 WL 1344344, at *4 (S.D.N.Y. May 7, 2007). Additionally, the plaintiff alleges that MBCHMC is an "enterprise engaged in interstate commerce" with more than $500, 000 in annual gross income, and is not exempt under 29 U.S.C. § 213; the defendant is thus a covered employer under the FLSA. (Compl., ¶ ¶ 9-10); 29 U.S.C. §§ 203(r)(1), 203(s)(1)(A)(i)-(ii), 206(a), 207(a). NYLL does not require that an employer be engaged in interstate commerce or meet thresholds of minimum annual sales. NYLL § 651(5)-(6).
The plaintiff alleges that he regularly worked 42.5 hours per week but was only paid for 40 hours per week at his regular wage rate of $8.00 an hour. (Compl., ¶¶ 15-18, 28-29, 41; Pl. Aff., ¶¶ 5-6).Under the FLSA, employees must be compensated "at a rate not less than one and one-half times the regular rate" for every hour worked in excess of 40 hours per week. 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.107.For an hourly employee such as Mr. Castellanos, "the hourly rate is the regular rate.'" 29 C.F.R. § 778.110(a). Similarly, NYLL requires that employees be compensated at a rate of one and one-half times the regular rate for any hours worked in excess of 40 hours per week, 12 N.Y. Code R. & Reg ("NYCRR") § 142-2.2; the regular rate is "the amount that the employee is regularly paid for each hour of work, " 12 NYCRR § 142-2.16.
In an FLSA case where the defendant does not rebut a plaintiff's recollection of hours worked, that estimate is presumed to be correct. Yang v. ACBL Corp., 427 F.Supp.2d 327, 335 (S.D.N.Y. 2005)."An affidavit that sets forth the number of hours worked is sufficient" to carry the plaintiff's initial burden of recalling uncompensated hours worked. Angamarca v. Pita Grill 7 Inc., No. 11 Civ. 7777, 2012 WL 3578781, at *3 (S.D.N.Y. Aug. 2, 2012) (noting that in default cases, even approximations by plaintiff are given credit and used to determine damages).
Because MBCHMC defaulted and Mr. Castellanos' uncontested allegations that he was not paid anything for the 2.5 hours per week he worked in excess of 40 hours are accepted as true, the plaintiff has sufficiently set forth the elements to state claims under the FLSA and NYLL for failure to pay ...