throbber
Case 1:15-cv-02781-KAM-SMG Document 103 Filed 09/05/19 Page 1 of 34 PageID #: 663
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`--------------------------------------X
`ARMANDO AGUILAR and BENITO CRUZ TORRES,
`
`individually and on behalf of all
`
`others similarly situated,
`
`Plaintiffs,
`
`
`
`
`
` -against-
`
`
`
`
`
`
`MEMORANDUM AND ORDER
`15-CV-2781 (KAM)(SMG)
`
`
`HAM N EGGERY DELI INC. (d/b/a NEW YORK
`DELI) and KOSTAS KALOUDIS,
`Defendants.
`--------------------------------------X
`MATSUMOTO, United States District Judge:
`Plaintiffs Armando Aguilar (“Aguilar”) and Benito Cruz
`Torres (“Torres”) brought suit against defendants Ham N Eggery
`Deli, Inc. and Kostas Kaloudis, alleging violations of the Fair
`Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the
`New York Labor Law (“NYLL”), § 190 et seq. The case proceeded
`to trial and was submitted to a jury, which returned a verdict
`partially in plaintiff’s favor and partially in defendant’s
`favor and awarded plaintiffs damages under the NYLL. Pending
`before the court are defendants’ renewed motion for judgment as
`a matter of law and motion for a new trial, and plaintiff’s
`motion for liquidated damages, pre-judgment interest, and
`attorneys’ fees. For the reasons set forth below, the court
`denies defendants’ motions and grants plaintiffs’ motion.
`
`
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`BACKGROUND
`On May 13, 2015, plaintiffs commenced this labor law
`action for unpaid minimum and overtime wages under the FLSA and
`NYLL, unpaid spread of hours pay and violation of wage notice
`and statement provisions under the NYLL, and recovery of
`equipment costs under the FLSA and NYLL against defendants.
`(ECF No. 1, Complaint (“Compl.”).) On March 30, 2017, the court
`issued a Memorandum and Order granting in part and denying in
`part plaintiffs’ motion for partial summary judgment. (ECF No.
`47, Memorandum & Order dated March 30, 2017.) Specifically, the
`court: granted Aguilar summary judgment as to defendants’
`liability on his tip credit claim; granted Torres summary
`judgment as to defendants’ liability on his tip credit claim
`insofar as it is based on the prerequisites in N.Y. Comp. Codes
`R. & Regs. tit. 12, §§ 1.3 and 2.2 and their predecessors;
`granted Aguilar summary judgment on his wage statement claims
`under N.Y. Lab. Law §§ 195(3) and 198(1-d) and awarded him
`$5,000 in damages; and denied Torres summary judgment on his
`wage statement claims. (Id.)
`On October 12, 2018, the court issued a Memorandum and
`Order denying in its entirety defendants’ motion for summary
`judgment. (ECF No. 64, Memorandum & Order dated October 12,
`2018.) The court denied summary judgment on defendants’
`arguments that the deli was not covered by the FLSA and that
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`Torres’s claims were barred by the statute of limitations,
`because there were disputed issues of material facts related to
`those determinations. (Id.) Based on the denial of summary
`judgment on the FLSA coverage issue, the court held that
`defendant’s argument that the court should decline to exercise
`supplemental jurisdiction over plaintiffs’ NYLL claims was moot.
`(Id.)
`
`A trial commenced on November 13, 2018, and a jury
`heard evidence on November 13 and 14, 2018. After hearing
`summations and being charged, the jury deliberated and returned
`a verdict on November 15, 2018. (ECF No. 97, Returned Verdict
`Form.) The jury only returned verdicts in plaintiffs’ favor on
`the minimum wage and overtime claims under the NYLL, finding for
`the defendants on the sole FLSA claim and the other remaining
`NYLL claims. (Id.) Defendants subsequently filed a renewed
`motion for judgment as a matter of law or for a new trial, and
`plaintiffs moved for liquidated damages, pre-judgment interest,
`and attorneys’ fees.
`
`LEGAL STANDARD
`Motion for Judgment as a Matter of Law under Rule 50 or for
`a New Trial under Rule 59
`“If a party believes that ‘a reasonable jury would not
`have a legally sufficient evidentiary basis’ to find for its
`adversary on a particular issue, it may move for judgment as a
`matter of law during trial under Federal Rule of Civil Procedure
`
`3
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`I.
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`50(a) and renew the motion after trial under Rule 50(b).”
`Cangemi v. Town of E. Hampton, 374 F. Supp. 3d 227, 232
`(E.D.N.Y. 2019) (citing Fed. R. Civ. P. 50 (a)-(b)). “In ruling
`on the renewed motion, the court may: (1) allow judgment on the
`verdict, if the jury returned a verdict; (2) order a new trial;
`or (3) direct the entry of judgment as a matter of law.” Fed.
`R. Civ. P. 50(b).
`“When evaluating a motion under Rule 50, courts are
`required to consider the evidence in the light most favorable to
`the party against whom the motion was made and to give that
`party the benefit of all reasonable inferences that the jury
`might have drawn in [its] favor from the evidence.” ING Glob.
`v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97 (2d
`Cir. 2014) (citation and internal quotation marks omitted).
`“The court cannot assess the weight of conflicting evidence,
`pass on the credibility of the witnesses, or substitute its
`judgment for that of the jury, and must disregard all evidence
`favorable to the moving party that the jury is not required to
`believe.” Id. (citation and internal quotation marks omitted).
`“Put another way, a court may grant a Rule 50 motion only if,
`after ‘viewing the evidence in the light most favorable to the
`non-movant, [it] concludes that a reasonable juror would have
`been compelled to accept the view of the moving party.’”
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`Jackson v. Tellado, 295 F. Supp. 3d 164, 170 (E.D.N.Y. 2018)
`(citing Cash v. Cty. Of Erie, 654 F.3d 324, 333 (2d Cir. 2011)).
`A party “fil[ing] a renewed motion for judgment as a
`matter of law . . . may include an alternative or joint request
`for a new trial under Rule 59.” Fed. R. Civ. P. 50(b). “The
`court may, on motion, grant a new trial on all or some of the
`issues . . . after a jury trial, for any reason for which a new
`trial has heretofore been granted in an action at law in federal
`court[.]” Fed. R. Civ. P. 59(a). “In contrast to a Rule 50
`motion for a new trial, a Rule 59(a) motion for a new trial “may
`be granted even if there is substantial evidence supporting the
`jury's verdict.’” Greenaway v. Cty. of Nassau, 327 F. Supp. 3d
`552, 560 (E.D.N.Y. 2018) (citing DLC Mgmt. Corp. v. Town of Hyde
`Park, 163 F.3d 124, 134 (2d Cir. 1998)). “Moreover, a trial
`[court] is free to weigh the evidence [itself], and need not
`view it in the light most favorable to the verdict winner.” DLC
`Mgmt. Corp., 163 F.3d at 134.
`But “[a] trial court should not grant a motion for a
`new trial unless it is ‘convinced that the jury ... reached a
`seriously erroneous result or that the verdict is a miscarriage
`of justice.’” Ali v. Kipp, 891 F.3d 59, 64 (2d Cir. 2018)
`(citing Amato v. City of Saratoga Springs, N.Y., 170 F.3d 311,
`314 (2d Cir. 1999)). “A court considering a Rule 59 motion . .
`. should only grant such a motion when the jury’s verdict is
`
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`I.
`
`egregious . . . and should rarely disturb a jury’s evaluation of
`a witness’s credibility.” DLC Mgmt. Corp., 163 F.3d at 134
`(citations and internal quotation marks omitted).
`DISCUSSION
`Exercise of Supplemental Jurisdiction
`Defendants argue that the jury’s verdict should be set
`aside because the plaintiffs’ FLSA claims prior to 2015 were
`withdrawn before the jury deliberated and, therefore, the court
`was divested of its supplemental jurisdiction over plaintiffs’
`state law claims from 2009 to 2014. (ECF No. 102-1, Defendants’
`Memorandum of Law in Support of Post-Verdict Motions Pursuant to
`Fed. R. Civ. P. 50 & 59 (“Def. Mem.”) at 2, 6.) Plaintiffs
`respond that none of the factors which would allow the court to
`decline exercising supplemental jurisdiction are present in this
`case and that it would have been appropriate for the court to
`exercise jurisdiction even if one of those factors were present.
`(ECF No. ECF No. 101, Plaintiffs’ Memorandum of Law in
`Opposition to Defendants’ Motion to Set Aside the Verdict of
`Grant Defendants a New Trial (“Pl. Opp.”) at 4-7.) Defendants
`argue in reply that the court should not have exercised
`supplemental jurisdiction because state law issues predominated
`over the case. (ECF No. 102-2, Defendants’ Reply Memorandum of
`Law in Support of Post-Verdict Motions Pursuant to Fed. R. Civ.
`P. 50 & 59 (“Def. Reply”) at 2-3.)
`
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`“Under 28 U.S.C. § 1367(a), federal courts have
`supplemental jurisdiction to hear state law claims that are so
`related to federal question claims brought in the same action as
`to ‘form part of the same case or controversy under Article III
`of the United States Constitution.’” Briarpatch Ltd., L.P. v.
`Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004). State
`and federal claims form part of the same case or controversy if
`they “derive from a nucleus of operative fact.” Id. (citing
`Cicio v. Does, 321 F.3d 83, 97 (2d Cir. 2003)). “It is well
`settled that NYLL and FLSA claims that arise out of the same
`compensation policies and practices derive from the same common
`nucleus of operative fact.” Salustio v. 106 Columbia Deli
`Corp., 264 F. Supp. 3d 540, 551 (S.D.N.Y. 2017).
`If the requirement for supplemental jurisdiction under
`Section 1367(a) is met, “the discretion to decline supplemental
`jurisdiction is available only if founded upon an enumerated
`category of subsection 1367(c).” Itar-Tass Russian News Agency
`v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998).
`Under subsection 1367(c), district courts may decline to
`exercise supplemental jurisdiction if “(1) the claim raises a
`novel or complex issue of State law, (2) the claim substantially
`predominates over the claim or claims over which the district
`court has original jurisdiction, (3) the district court has
`dismissed all claims over which it has original jurisdiction, or
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`(4) in exceptional circumstances, there are other compelling
`reasons for declining jurisdiction.” If one of the § 1367(c)
`factors applies, the court still “should not decline to exercise
`supplemental jurisdiction unless it also determines that doing
`so would not promote the values articulated in Gibbs: economy,
`convenience, fairness, and comity.” Jones v. Ford Motor Credit
`Co., 358 F.3d 205, 214 (2d Cir. 2004) (citing United Mine
`Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)).
`Regarding plaintiffs’ FLSA claims, there was only one
`tax return in evidence, for the year 2015, which showed gross
`receipts over $500,000, the amount necessary for the FLSA to
`apply. (See Tr. 156.) When the defense sought directed verdict
`under Rule 50, the issue of whether the New York Deli generated
`as least $500,000 in revenue was discussed. (Tr. 233.) After
`the parties discussed the lack of documentation available for
`most of the years in question, and after the court noted that
`the jury would have to resolve this issue, plaintiff offered to
`withdraw the FLSA claims, except for Aguilar’s 2015 FLSA claim,
`in order to free the jury from having to decide the issue. (Tr.
`233-35.) Plaintiffs’ counsel sought confirmation that the court
`would continue to exercise supplemental jurisdiction over the
`remaining state law claims for both plaintiffs, which the court
`agreed to do. (Tr. 235-36.) Defense counsel did not raise any
`objections to the court’s continued exercise of supplemental
`
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`jurisdiction. (See id.) Defense counsel also did not raise any
`objections during the charging conference when plaintiffs’
`counsel confirmed that plaintiffs would drop all of the FLSA
`claims except for Aguilar’s 2015 claim. (Tr. 254-55.)
`Section 1367(c)(1) does not apply because there are no
`novel or complex issues of New York state law at issue here.
`Regarding Subsection 1367(c)(2), the state law minimum wage and
`overtime claims did not predominate over the federal law claims.
`See Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d
`234, 246 (2d Cir. 2011) (“Because the FLSA and the NYLL use a
`similar standard for making [minimum wage or overtime violation]
`determination[s], and because each set of claims arise from the
`same set of operative facts, a determination as to the FLSA
`claims may decide the Plaintiffs' NYLL claim as well.”).
`Section 1367(c)(3) does not apply because the court did not
`“dismiss[] all claims over which it has original jurisdiction,”
`retaining Aguilar’s 2015 FLSA claim. (28 U.S.C. § 1367(c)(3)
`(emphasis added)). Finally, Section 1367(c)(4) does not apply
`because there are no exceptional circumstances at issue in this
`case.
`
`But even if the 2015 FLSA claim had been dismissed as
`well, the Second Circuit has “upheld the exercise of
`supplemental jurisdiction even when all federal-law claims were
`eliminated prior to trial, for example, in long-pending cases
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`presenting no novel issues of state law where discovery had been
`completed, dispositive motions had been submitted, and the case
`would soon be ready for trial.” Catzin v. Thank You & Good Luck
`Corp., 899 F.3d 77, 83 (2d Cir. 2018) (citation and internal
`quotation marks omitted). See also Purgess v. Sharrock, 33 F.3d
`134, 139 (2d Cir. 1994) (“When the district court determined, at
`the end of the defendants' case, to dismiss plaintiff's last
`federal claim, there were no compelling reasons at that point to
`prevent a final determination of the state claims by the jury. .
`. . The district court did not abuse its discretion by
`exercising supplemental jurisdiction.”).
`Moreover, even accepting for the sake of argument that
`the state law claims predominated after the parties stipulated
`to withdraw the majority of the FLSA claims, defendant does not
`adequately establish that judicial economy, convenience,
`fairness, and comity would be served by declining to exercise
`supplemental jurisdiction. “[E]ven when federal claims are
`resolved before trial, comity does not automatically mandate
`dismissal of pendent state claims.” Enercomp, Inc. v. McCorhill
`Pub., Inc., 873 F.2d 536, 545 (2d Cir. 1989). Here, a federal
`claim remained at issue during part of the trial. Judicial
`economy would not be served by having the NYLL claims retried in
`state court with the same evidence presented in federal court.
`It would have been unfair for the plaintiffs’ case to be dropped
`
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`during trial, and it would be unfair now for the plaintiffs to
`try a duplicative case arising from the same facts in state
`court. It also would be imprudent for the court to entertain
`and grant the defendants’ current objection after defense
`counsel failed to object when plaintiff’s counsel specifically
`confirmed that the court would exercise supplemental
`jurisdiction over the state law claims.
`The court’s exercise of supplemental jurisdiction over
`the state law claims was proper, and the court will not set
`aside the jury’s verdict on this basis.
`II.
`Evidentiary Support for Jury Award
`A. Armando Aguilar
`Defendants argue that the jury’s verdict should be
`overturned and its damages award set aside because there was
`overwhelming evidence that Aguilar was properly paid in
`accordance with minimum wage and overtime provisions. (ECF No.
`102-1, Def. Mem. at 3.) Defendants specifically claim that
`Aguilar’s pay reflected the rates that were listed on a sign
`provided by the New York Department of Labor, which was posted
`on the wall of the business and reflected the minimum wage
`changes over time. (Id. at 3-4.) The defendants also identify
`testimony from Aguilar and another witness, Willy Quinones,
`asserting that plaintiffs were aware of the sign. (Id. at 3-4.)
`
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`Plaintiffs argue that defendants failed to articulate
`how or why the damages award was unsupported by the evidence and
`counter defendants’ arguments by contending that defendants’
`application of the tip credit entitled Aguilar to some amount of
`damages. (ECF No. 101, Pl. Opp. at 8.) In support of their
`damages awards, plaintiffs point to Aguilar’s testimony that he
`frequently worked more than 40 hours a week and was paid a fixed
`salary, which resulted in damages (an award reflecting that the
`jury only partially credited Aguilar). (Id. at 8-9.)
`In reply, defendants again identify the signs
`identifying the lawful pay rates as evidence supporting their
`position. (ECF No. 102-2 at 3.) Defendants also argue that
`defendant Kaloudis’s testimony regarding his process of
`calculating and making payments to Aguilar supports overturning
`the verdict, in addition to drawing attention to offered
`evidence that Aguilar spent part of his time doing “delivery
`(i.e. tip credit) work.” (Id. at 4-5.)
`Considering the evidence in the light most favorable
`to Aguilar, a reasonable jury would not have been compelled to
`find in defendants’ favor. Even weighing the evidence under
`Rule 59, the court does not find that the jury reached an
`egregious or seriously erroneous result. As described in
`greater detail below, Aguilar offered testimony that he
`regularly worked over 40 hours a week and was paid a fixed
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`weekly salary that did not sufficiently cover the minimum wage
`and overtime pay. The jury credited Aguilar’s testimony over
`that of defendant Kaloudis and witness Willy Quinones. The
`presence of a sign reflecting the law is not evidence that
`Aguilar was paid in accordance with that law.
`Aguilar testified that he started working at the deli
`as a dishwasher, cleaner, and delivery person. (Tr. 31-32.) He
`testified that he worked from 7 a.m. to 6:30 p.m. on weekdays
`and from 6 a.m. to 2 p.m. on Saturdays. (Tr. 31.) Aguilar
`would make 5-7 deliveries, in contrast to other people who made
`a lot more deliveries. (Tr. 37, 84.) In July 2011, his
`schedule changed to working from 5 a.m. to 4 p.m. on weekdays,
`and from 5 a.m. to 1 p.m. on Saturdays. (Tr. 33.) He also
`became a food preparer in July 2011. (Tr. 33.) In July 2013,
`his weekday schedule changed to working form 5 a.m. to 3 p.m.
`(Tr. 34.)
`
`Aguilar testified that he was paid $250 per week when
`he started working for the defendants in 2008, and received a
`raise to $400 per week in July 2011, when he became a food
`preparer. (Tr. 34-35.) He testified that he was sometimes
`given around $1 to $1.50 per delivery (or $10 in total) in tips
`when he made deliveries. (Tr. 85.) His pay increased again to
`$460 per week in April 2013. (Tr. 36.) Aguilar testified that
`Kaloudis never sat down with him and showed him how his pay was
`
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`being calculated, and he also testified that he was told by
`Kaloudis that he would be paid at a weekly rate. (Tr. 36-37,
`87.)
`
`Kaloudis testified that the deli’s hours of operations
`were from 5 a.m. to 4 p.m. Monday through Friday, and 6 a.m. to
`1 p.m. on Saturdays. (Tr. 94.) He testified that the employees
`had a steady schedule and set hours. (Tr. 95.) Kaloudis
`testified that the schedule was never written because there were
`set hours and the schedule never fluctuated. (Tr. 97.) But he
`also stated that the schedules, including Mr. Aguilar’s, varied
`seasonally—during the summer and around Christmas. (Tr. 97-98.)
`Kaloudis admitted that he did not understand that there was a
`legal requirement to keep records of the hours worked and noted
`that the laws changed constantly between 2008 and 2015. (Tr.
`104.) Kaloudis stated that he did not keep records of when
`people clocked in or out of work, but kept index cards that
`reflected the hours an employee worked that week. (Tr. 105.)
`Defendants offered an exhibit, Def. Ex. 5, which
`consisted of index cards Kaloudis said he used to record
`Aguilar’s pay from November 2012 through March 29, 2015. (Tr.
`167.) He claimed that his prior records were lost in Hurricane
`Sandy. (Tr. 167.) Kaloudis described his payment calculation
`as multiplying the minimum wage by the hours worked in the week,
`adding overtime, and deducting tip credit. (Tr. 166.) The
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`cards reflected consistent application of tip credit, which was
`always $2.25 per hour and deducted from the minimum wage. (Tr.
`170, 174.) Kaloudis testified that Aguilar worked 25 hours per
`week doing delivery work. (Tr. 170-72.) Defendants deducted a
`tip credit of $56.25 from Aguilar’s weekly pay. (Tr. 46; Def.
`Ex. 5 at 1, 4.)
`Kaloudis further testified that he believed Aguilar
`was paid around $250 or $270 per week when Aguilar first started
`working and claimed that Aguilar’s pay changed every time the
`minimum wage increased. (Tr. 109, 195-96.) Kaloudis also
`testified that he thought Aguilar generally received between
`$40-$50 in tips each day. (Tr. 197.) Kaloudis said Aguilar
`would ask him to exchange the $1 bills received as tips for
`larger bills. (Id.) Aguilar denied that he made $40-$50 a day
`in tips (Tr. 84) and claimed that he would bring his tip money
`to Kaloudis only when he needed change for a dollar. (Tr. 85-
`86.)
`
`Kaloudis testified that he did not give employees,
`like Aguilar, who were paid in cash pay statements; he would
`give them the receipt from the calculator he used to calculate
`their pay with them each week. (Tr. 100.) Kaloudis said that
`he calculated the payments in the presence of and with any
`necessary input from the employee. (Tr. 100, 106-08.) He
`testified that workers knew what the minimum wage was because of
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`posters he had on the business’s wall. (Tr. 161.) He posted
`these posters from the restaurant’s opening and changed them
`whenever a new one was issued. (Tr. 161-62.)
`Willy Quinones, an employee of the deli from 2014
`through 2016, testified that he saw Aguilar speaking with
`Kaloudis with index cards and calculators when Aguilar was
`getting paid. (Tr. 244.) He also testified that he did not
`hear any of their conversations or see any of the calculations
`being made. (Tr. 247-48.)
`Viewing the evidence in the light most favorable to
`the plaintiff, the court finds that the jury would not have been
`compelled to rule in favor of the defendants. Nor can the court
`conclude that the jury’s verdict was seriously erroneous or a
`miscarriage of justice. The jury’s finding of minimum wage
`violations is consistent with the testimony offered by both
`Aguilar and Kaloudis that Aguilar was paid $250 per week when he
`first started working at the deli, as well as defendant’s
`testimony that he consistently deducted a tip credit from
`Kaloudis’s minimum wage.
`Defendants also argue that Def. Ex. 5 demonstrates
`that Aguilar was paid in accordance with the minimum wage and
`overtime. (ECF No. 102-1, Mem. at 4; ECF No. 102-2, Reply at 4-
`5.) However, the jury was at liberty to determine whether they
`credited this record as comprehensive and accurate regarding how
`
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`much Aguilar worked or was paid. Kaloudis himself testified
`that he did not keep track of the actual times people started
`and finished working, claiming that the schedules were set.
`Aguilar also testified that there was not a system for clocking
`the employees’ time. And Kaloudis further testified that he
`came into work after the business opened, varying the time he
`arrived “to keep everybody on edge.” (Tr. 94-95.) This meant
`he did not personally observe or have firsthand knowledge of how
`much Aguilar actually worked each week. The jury weighed both
`parties’ testimony and credited what they believed.
`Defendants also argue that they properly paid Aguilar
`at the tip credit rate and that the record supports this. (ECF
`No. 102-2, Reply at 4-5.) This court already determined that
`defendants were not entitled to deduct a tip credit from the
`wages paid to Aguilar during the first round of summary judgment
`briefing. (ECF No. 47, Memorandum & Order dated March 30, 2017
`at 8-9.) The jury was properly instructed that the defendants
`were not entitled to take a tip credit. Even considering
`defendants’ trial testimony and post-trial arguments, defendants
`still would not prevail on the tip credit issue. They did not
`offer evidence establishing that defendants complied with the
`written notice requirements to claim tip credit under the NYLL
`or that Aguilar was classified as an employee against whom a tip
`
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`credit could be applied, the bases on which the court ruled in
`Aguilar’s favor on summary judgment.
`Based on the foregoing, the court will not set aside
`the jury’s verdict as to Aguilar, and defendants’ motions are
`denied.
`
`B. Benito Cruz Torres
`Defendants argue that the jury’s verdict and award of
`damages to Torres should be set aside because Torres was aware
`of the lawful wage rates and provided vague testimony. (Def.
`Mem. at 5-6; Def. Reply at 6-7.) Defendants assert that Torres
`was paid in cash at his request and that Kaloudis maintained
`payment records for Torres which were destroyed in Hurricane
`Sandy. (Def. Mem. at 5; Def. Reply at 6-7.) Plaintiffs argue
`that defendants do not identify how or why the damages award to
`Torres was unsupported by the evidence and that Torres also was
`entitled to damages based on defendants’ application of tip
`credit to his wages.
`Kaloudis testified that he thought that Torres worked
`from 7 a.m. to 4 p.m. on Monday through Friday, though he also
`began working on Saturdays from 6 a.m. to 1 p.m., four or five
`months after he started. (Tr. 110.) Kaloudis testified that
`Torres was paid $250. (Tr. 111.) The payment records regarding
`Torres were lost in Hurricane Sandy. (Tr. 182.) Kaloudis
`testified that he fired Torres because he saw him with bananas
`
`
`
`18
`
`

`

`Case 1:15-cv-02781-KAM-SMG Document 103 Filed 09/05/19 Page 19 of 34 PageID #: 681
`
`that he had taken without permission from the restaurant. (Tr.
`164.)
`
`Torres testified that he worked at the New York deli
`from 2008 to 2012. (Tr. 214-15.) He said that he remembers he
`stopped working for the defendants in 2012, because he
`remembered that he worked with his coworkers for 4 years. (Tr.
`225-26.) He said he worked from 7 a.m. to 5 p.m. Monday through
`Friday, and from 6:00 a.m. to 1:00 p.m. on Saturday, washing
`dishes and making deliveries. (Tr. 215.) He testified that
`there was no time recording system for tracking their hours.
`(Tr. 216.) Torres testified that his initial pay was $175 per
`week, which increased to $225 a week a year into his employment,
`and that he made $250 per week during his last year working
`there when he began cleaning and stocking merchandise. (Tr.
`216.) Torres said that he wasn’t aware of the minimum wage rate
`(Tr. 219), but later conceded that he saw the poster listing the
`minimum wage as $7.25. (Tr. 223.)
`The jury considered the conflicting testimony and
`credited Torres’s claim that he was not paid properly during his
`time working for the defendants. This case does not present a
`rare circumstance in which the court should undermine the jury’s
`assessment of a witness’s credibility. In any case, the jury
`did not fully credit Torres, ultimately agreeing with the
`defense’s position that Torres was terminated in 2010, rather
`
`
`
`19
`
`

`

`Case 1:15-cv-02781-KAM-SMG Document 103 Filed 09/05/19 Page 20 of 34 PageID #: 682
`
`than in 2012 as plaintiffs contended. Viewing the evidence in
`the light most favorable to the plaintiff, the court finds that
`the jury would not have been compelled to rule in favor of the
`defendants. The court also cannot conclude that the jury’s
`verdict is seriously erroneous or constitutes a miscarriage of
`justice.
`The court will not aside the jury’s verdict as to
`Torres, and defendants’ motions are denied.
`III.
`Award of Additional Damages and Fees to Plaintiffs
`A. Minimum Wages and Overtime
`Plaintiffs seek liquidated damages and prejudgment
`interest based on the jury’s award of compensatory minimum wage
`and overtime damages. Before calculating liquidated damages and
`prejudgment interest, the court has determined that some
`adjustments are warranted as a matter of law to determine the
`proper compensatory damages. The start date for the damages
`period is May 13, 2009 because the plaintiffs may only recover
`six years prior to filing of the action. N.Y. Lab. Law § 663.
`1. Aguilar
`To determine the minimum wage to which Aguilar was
`entitled, the jury used two methods to calculate damages.1
`
`1 Although the verdict form did not include the jury’s specific calculations,
`the court determined their calculations by applying the jury instructions and
`confirming which salary amounts yielded the awarded damages. The court
`continues to accept the jury’s factual findings, as explained above, with
`
`
`
`
`20
`
`

`

`Case 1:15-cv-02781-KAM-SMG Document 103 Filed 09/05/19 Page 21 of 34 PageID #: 683
`
`First, the jury credited Aguilar’s testimony regarding his
`weekly salary and awarded him the difference between what the
`labor law required and what he was paid. After Aguilar’s salary
`was increased in July 2011, the jury used a second method of
`calculating damages and credited Kaloudis’s testimony that he
`deducted tip credit from Aguilar’s pay. The jury awarded
`Aguilar damages equal to the amount of tip credit that Kaloudis
`wrongfully deducted, likely relying on the instruction that the
`court had already determined that the law did not authorize
`defendants to deduct a tip credit.
`For Aguilar’s 2009 damages, the jury awarded 23 weeks
`of pay for the two applicable minimum wage rates that year.
`However, Aguilar can only recover for damages six years prior to
`the filing of this action, or as far back as May 13, 2009. The
`minimum hourly wage changed from $7.15 to $7.25 on July 24,
`2009. The jury, therefore, was limited to providing 10 weeks of
`damages at the $7.15 hourly minimum wage, covering the period
`from May 13 to July 24, 2009, rather than the 23 weeks they
`used.
`
`Beginning in July 2011, when the jury began awarding
`tip credit, the jury recognized that Aguilar’s weekly pay was
`greater than the minimum wage required by law. Whatever
`
`
`
`
`alterations to damages made only where the calculations failed to comply with
`the law.
`
`21
`
`

`

`Case 1:15-cv-02781-KAM-SMG Document 103 Filed 09/05/19 Page 22 of 34 PageID #: 684
`
`defendants’ intent regarding the tip credit, Aguilar’s weekly
`salary from July 2011 through April 2015 exceeded the minimum
`wage based on a forty-hour work week, and Aguilar, therefore,
`cannot recover an additional minimum wage award for this time
`period.
`
`Weekly
`Shortfall
`
`Weeks
`Underpaid
`
`$36
`$40
`$40
`$40
`
`
`10
`23
`52
`26
`
`
`Original
`Jury Award
`
`Corrected
`Award
`
`$360
`$1748
`$920
`
`$2080
`$2080
`$1040
`$2503
`$15,9503 $4400
`
`Weekly
`Wage
`Received
`$250
`$250
`$250
`$250
`
`
`2009
`20092
`2010
`2011
`Total
`
`The court adjusts Aguilar’s overall minimum wage
`awards as follows:
`Year
`Lawful
`Weekly
`Wage
`$286
`$290
`$290
`$290
`
`
`The jury also awarded Aguilar overtime damages

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