United States District Court, E.D. New York
ANDRES ORTIZ GARCIA and GUILLERMO RODRIGUEZ MARTINEZ, individually and on behalf of all others similarly situated, Plaintiffs,
DITMARS SQUARE INC. d/b/a LAST STOP CAFE and MARINOS A. CONSTANTINIDES, Defendants.
NICHOLAS G. GARAUFIS, United States District Judge.
January 13, 2016, Plaintiffs Andres Ordaz Garcia
("Ordaz") and Guillermo Rodriguez Martinez
("Rodriguez") initiated this action against their
employers, Defendants Ditmars Square Inc. d/b/a Last Stop
Cafe ("Ditmars Square") and Marinos A.
Constantinides ("Constantinides"), alleging
multiple violations of the Fair Labor Standards Act, 29
U.S.C. §§ 201 et seq. (the
"FLSA"), and the New York Labor Law (the
"NYLL"). (Compl. (Dkt. 1).) Neither Defendant has
appeared or answered, despite proper service, and so the
Clerk of Court entered default against both Defendants.
(Entry of Default re Ditmars Square (Dkt. 10); Entry of
Default re Constantinides (Dkt. 16).) On July 29, 2016,
Plaintiffs moved for default judgment against both Defendants
on their FLSA and NYLL claims,  seeking unpaid wages, liquidated
damages, prejudgment interest, attorneys' fees, and costs
(the "Motion"). (Mot. for Default J. (Dkt. 18);
see also Mem. in Supp. of Mot. for Default J.
("Mem.") (Dkt. 19) at 2.) The court referred the
Motion to Magistrate Judge Steven L. Tiscione for a Report
& Recommendation ("R&R") pursuant to 28
U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
March 10, 2017, Judge Tiscione issued an R&R recommending
that the Motion be granted. (R&R (Dkt. 24).) With regard
to liability, Judge Tiscione recommended that Defendants be
held jointly and severally liable for: failing to pay
Rodriguez the minimum wage under the FLSA and the NYLL;
failing to pay both Plaintiffs the overtime compensation they
were owed under the FLSA and the NYLL; failing to pay Ordaz
spread-of-hours payments under the NYLL; misappropriating
Rodriguez's tips in violation of the FLSA and the NYLL;
and failing to provide both Plaintiffs with written notice
and wage statements, as required under the NYLL.
(Id. at 10-17, ) Judge Tiscione recommended against
finding Defendants liable for Plaintiffs claims of failure to
reimburse for "tools of the trade" under the FLSA
and the NYLL. (Id. at 15-16.)
Tiscione recommended that damages be awarded as follows: $71,
987.63 in damages to Ordaz, plus prejudgment interest; $73,
280.06 in damages to Rodriguez, plus prejudgment interest;
$4, 260.00 in attorneys' fees; and $700.00 in costs and
disbursements. (Id. at 2; see also
Id. at 17-32.) Prejudgment interest is to be
calculated at a rate of 9% per annum from January 11, 2013.
(Id. at 20-21 (citing N.Y. C.P.L.R. 5001, 5004, and
applicable case law).)
party has objected to Judge Tiscione's R&R, and the
time to do so has passed. See Fed.R.Civ.P. 72(b)(2). (See
also Apr. 6, 2017, Order; PI. Apr. 6, 2017, Aff. of
Serv. (Dkt. 28).) Therefore, the court reviews the R&R
for clear error. See Colon v. Sheahan, No.
13-CV-6744 (PAC) (JCF), 2016 WL 3926443, at *3 (S.D.N.Y. July
14, 2016); Gesualdi v. Mack Excavation & Trailer
Serv.. Inc.. No. 09-CV-2502 (KAM) (JO), 2010 WL 985294,
at *1 (E.D.N.Y. Mar. 15.2010); see also Porter v.
Potter. 219 F.App'x 112 (2d Cir. 2007) (summary
order); c£ 28 U.S.C. § 636(b)(1).
court finds no clear error, and therefore ADOPTS IN FULL
Judge Tiscione's R&R. Accordingly, the court GRANTS
Plaintiffs' Motion for Default Judgment (Dkt. 18) and
finds Defendants JOINTLY AND SEVERALLY LIABLE for
Plaintiffs' claims under the FLSA and the NYLL, as
described above. The court AWARDS damages, fees, and costs as
• Plaintiff Andres Ordaz Garcia is awarded $71, 987.63
in damages, plus prejudgment interest at 9% per annum from
January 11, 2013;
• Plaintiff Guillermo Rodriguez Martinez is awarded $73,
280.06 in damages, plus prejudgment interest at 9% per annum
from January 11, 2013;
• Plaintiffs are awarded $4, 260.00 in attorneys'
• Plaintiffs are awarded $700.00 in costs and
 The docket and Complaint in this
action incorrectly refer to this plaintiff as Andres
"Ortiz" Garcia. Plaintiffs subsequently notified
the court that the correct spelling is "Ordaz
Garcia." (See Pis. Mem. in Supp. of Mot. for
Default J. ...