Fermin v. Las Delicias Peruanas Restaurant, Inc. (93 F. Supp. 3d 19, 2015)

ORDER ADOPTING REPORT AND RECOMMENDATION

ROSLYNN R. MAUSKOPF, District Judge.

By a motion filed August 25, 2014, plaintiffs moved for a default judgment. On November 6, 2014, this Court referred the matter to the assigned Magistrate Judge, the Honorable Vera M. Scanlon. On February 27, 2014, Magistrate Judge Scanlon issued a Report and Recommendation (“R & R”) recommending that this Court (1) grant plaintiffs’ motion for default judgment; (2) award plaintiffs $428,008.40 in damages, which represents $289,605.23 for plaintiff Francisco Fermín, $59,343.64 for plaintiff Emilio Moreno, $70,388.53 for plaintiff Andres Del Rosario, and $8,671.00 in attorney’s and paralegal’s fees and costs; and (3) order the defendants to pay ' plaintiffs’ 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 set forth in 28 U.S.C. § 1961..

Magistrate Judge Scanlon reminded the parties that any objections to the R & R were due by March 16, 2015. (Doc. No. 17 at 54.) Magistrate Judge Scanlon further noted that she had mailed a copy of the relevant docket entry as well as the R & R and its appendix to each defendant. (Doc. No. 17.) As of this date, no party has filed any objections.

Pursuant to 28 U.S.C. § 636(b) and Fed. R.Civ.P. 72, the Court has reviewed the R & R for clear error. Noting the thorough review that Magistrate Judge Scanlon performed of plaintiffs’ claims, affidavits, and other documents, her well-reasoned analysis of defendants’ liability, and her detailed examination of plaintiffs’ individual damages calculations, the Court finds no clear error in the R & R.' It concurs with and adopts Magistrate Judge Scanlon’s R & R in its entirety. See Covey v. Simonton, 481 F.Supp.2d 224, 226 (E.D.N.Y.2007).

CONCLUSION

Accordingly, plaintiffs’ motion for default judgment is GRANTED, and it is hereby

ORDERED that defendants Las Delici-as Peruanas Restaurant, Inc., Bertha Marconi and Nicolas De Pierola are jointly and severally hable for damages in the amount of $428,008.40 to each of the named plaintiffs as follows:

Damages to plaintiff Francisco Fermín: $12,555.60 for unpaid minimum wages for hours worked up to forty hours per week; $38,155.68 for unpaid minimum wages and overtime premium pay for hours worked in excess of forty hours per week; $8,559.55 for unpaid spread-of-hours premiums; $128,700.00 in misappropriated tips; $10,761.07 in liquidated damages under the NYLL and $14,406.80 in liquidated damages under the FLSA; and $76,466.53 in pre-judgment interest, for a total award of $289,605.23.

Damages to plaintiff Emilio Moreno: $8,726.00 for unpaid minimum wages for hours worked up to forty hours per week; $20,376.60 for unpaid minimum wages and overtime premium pay for hours worked in excess of forty hours per week; $1,599.15 for unpaid spread-of-hours premiums; $4,164.64 in liquidated damages under the NYLL and $13,231.20 in liquidated damages under the FLSA; and $11,246.05 in pre-judgment interest, for a total award of $59,343.64.

Damages to plaintiff Andres Del Rosario: $13,027.20 for unpaid minimum wages for hours worked up to forty hours per week; $21,668.00 for unpaid minimum wages and overtime premium pay for hours worked in excess of forty hours per week; $1,513.35 for unpaid spread-of-hours premiums; $4,696.24 in liquidated damages under the NYLL and $16,611.60 in liquidated damages under the FLSA; and $12,872.14' in prejudgment interest, for a total damages award of $70,388.53.

And it is FURTHER ORDERED that defendants Las Delicias Peruanas Restaurant, Inc., Bertha Marconi and Nicolas De Pierola are hereby jointly and severally liable for attorney’s fees and costs in the total amount of $8,671.00, and it is

FURTHER ORDERED that defendants Las Delicias Peruanas Restaurant, Inc., Bertha Marconi and Nicolas De Pie-rola pay post-judgment interest.

The Clerk of Court is directed to enter Judgment accordingly, transmit copies of this Order and the accompanying Judgment to each of the three defendants via U.S. Mail at the following address: Las Delicias Peruanas Restaurant, Inc., 43-07 104th Street, Corona, New York 11368. The Clerk of Court is further directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

VERA M. SCANLON, United States Magistrate Judge.

Plaintiffs Francisco Fermín, Emilio Moreno and Andres Del Rosario (collectively “Plaintiffs”) bring this action against Defendants Las Delicias Peruanas Restaurant, Inc. (“Las Delicias”), Berha Marconi and Nicolas De Pierola (collectively “Defendants”) pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law § 650 et seq., as recently amended by the Wage Theft Prevention Act (“WTPA”), N.Y. Lab. Law § 195(3). Docket No. 1. Plaintiffs seek to recover unpaid minimum wages, unpaid overtime compensation, unpaid and/or misappropriated tips, unpaid “spread-of-hours” premiums for the days they worked in excess of ten hours, liquidated damages, and civil penalties pursuant to the NYLL and the WTPA, pre-judgment interest, and attorney’s fees and costs. Id. Upon Defendants’ failure to answer or otherwise respond to this action, the Clerk of Court noted Defendants’ default. Docket No. 9. Plaintiffs filed a motion for default judgment against Defendants. Docket Nos. 10-15. The Honorable Roslynn R. Maus-kopf referred the motion to me for a report and recommendation.

For the following reasons, I respectfully recommend that the District Judge grant the default judgment motion; find Defendants liable to Plaintiffs for violations of the FLSA and the NYLL as discussed herein; enter a judgment against Defendants for Plaintiffs in the amount of $428,008.40 in damages, which represents $289,605.23 for Mr. Fermín, $59,343.64 for Mr. Moreno, $70,388.53 for Mr. Del Rosario, and $8,671.00 in attorney’s and paralegal’s fees and costs; and order Defendants to pay Plaintiffs post-judgment interest.

I. Background

The following facts are derived from the Complaint and are accepted as true for purposes of this motion. Docket No. 1. Facts relating to the procedural history of the case are derived from the docket.

a. General Factual Background Regarding Las Delicias, The Individual Defendants’ Roles, And Employment Policies And Practices At Las Delicias

Las Delicias is a restaurant and domestic business corporation organized under New York law, with a principal place of business within the Eastern District of New York, near Corona Park, Queens. Id. ¶ 7. The Individual Defendants are joint owners, shareholders, officers, directors, managing agents and proprietors of Las Delicias, and they both actively participated in Las Delicias’s day-to-day operations during all periods of time relevant to this action. Id. ¶ 8. The Individual Defendants are both employers pursuant to the FLSA, 29 U.S.C. § 203(d), and related regulations such as 29 C.F.R. § 791.2, as well as under NYLL § 2(6) and related regulations under the NYLL. Docket No. 1 ¶ 8.

The Individual Defendants each exercised control over the terms and conditions of Plaintiffs’ employment in that they each had the power during all relevant periods to: (1) hire and fire employees; (2) determine rates and methods of pay; (3) determine whether an employee receives a raise and, if so, in what amount; (4) determine the number of hours an employee works by assigning work schedules; (5) supervise and control work of the employees; and (6) otherwise affect the quality of the employees’ employment. Id. ¶¶ 9-10, 19. The Individual Defendants were present at Las Delicias on a daily basis and were considered the bosses of all of Las Delici-as’s employees in that the Individual Defendants personally supervised the employees’ work, instructed the employees on how to perform their jobs, reprimanded the employees for any errors the employees made in executing their duties, and required that hours and pay be authorized or approved by them. Id. ¶¶ 10,18.

At all times relevant to this action, Las Delicias was an “enterprise engaged in commerce” within the meaning of the FLSA in that it (1) has and has had employees engaged in commerce or in the production of goods for commerce, or that handle, sell, or otherwise work on goods or materials that have been moved in or produced for commerce, and (2) has and has had an annual gross volume of sales of not less than $500,000.00. Id. ¶¶ 11, 71, 73. Defendants employed Plaintiffs, who are covered individuals within the meaning of the FLSA, §§ 206(a) and 207(a), and Plaintiffs’ work was essential to Las Delicias’s operations. Docket No. 1 ¶¶ 12, 71-72.

At all relevant times, Defendants knowingly and willfully operated Las Delicias with a policy of not paying Plaintiffs: (1) their lawfully earned FLSA and New York State minimum wages for the hours worked; (2) their lawfully earned FLSA and New York State overtime compensation (time and one-half); and (3) their lawfully earned spread-of-hours premium for each day they worked a shift in excess of ten hours. Id. ¶¶ 13-16, 47-50, 74-78, 80-81, 92. In addition, at all relevant times Defendants knowingly and willfully operated Las Delicias with a policy of misappropriating and retaining the tips of Mr. Fermin and/or requiring Mr. Fermin to participate in an unlawful tip sharing or tip-pooling arrangement. Id. ¶¶ 49, 80-81.

Finally, at all relevant times, Defendants failed to maintain accurate and sufficient time and pay records. Id. ¶¶ 51, 82. Defendants also failed to disclose or apprise Plaintiffs of their rights under the FLSA. Id. ¶ 83.

b. Factual Background Specific To Plaintiffs’ Work As Employees Of Defendants

i. Mr. Fermin

On April 18, 2005, Defendants hired Mr. Fermin to work as a non-exempt waiter, kitchen helper/food preparer, and cleaner at Las Delicias. Id. ¶ 20. In or around November 2011, Defendants promoted Mr. Fermin to the non-exempt position of cook. Id. ¶ 21.

Over the course of Mr. Fermin’s employment, he regularly worked over forty hours a week. Id. ¶ 23. From April 18, 2005 until approximately October 2011, Mr. .Fermin worked six days a week for twelve hours per day (11:00 a.m. until 11:00 p.m.). Id. ¶ 24. Beginning in November 2011 and continuing for the remainder of his employment, Mr. Fermin worked six days a week for nine-and-one-quarter hours per day (12:00 p.m. until 9:15 p.m.) on Mondays, Wednesdays and Thursdays; ten hours per day (12:00 p.m. until 10:00 p.m.) on Fridays; and eleven hours per day (11:00 a.m. until 10:00 p.m.) on Saturdays and Sundays. Id. ¶ 25.

Throughout the entirety of his employment, Mr. Fermin did not receive proper minimum wages and/or overtime compensation. Id. ¶ 26. From January 27, 2008 (the beginning of the relevant six-year limitations period) until December 31, 2008, Mr. Fermin received a fixed cash salary of $380.00 per week. Id. As Mr. Fermin worked seventy-two hours per week during this period, Mr. Fermin’s wage amounted to $5.28 per hour ($380.00 divided by 72). Id.

From January 1, 2009 until approximately December 31, 2009, Mr. Fermin received a fixed cash salary of $400.00 per week. Id. ¶ 27. As Mr. Fermin worked seventy-two hours per week during this period, Mr. Fermin’s wage amounted to $5.56 per hour ($400.00 divided by 72). Id.

From January 1, 2010 until October 31, 2011, Mr. Fermin received a fixed cash salary of $420.00 per week. Id. ¶ 28. As Mr. Fermin worked seventy-two hours per week during this period, Mr. Fermin’s wage amounted to $5.83 per hour ($420.00 divided by 72). Id.

From November 1, 2011 until February 28, 2012, Mr. Fermin received a fixed cash salary of $420.00 per week. Id. ¶29. During this period, Mr. Fermin worked sixty hours per week, and so Mr. Fermin’s wage amounted to $7.00 per hour ($420.00 divided by 60). Id.

From March 1, 2012 until March 24, 2013, Mr. Fermin received a fixed cash salary of $480.00 per week. Id. ¶ 30. During this period, Mr. Fermin worked sixty hours per week, and so Mr. Fermin’s wage amounted to $8.00 per hour ($480.00 divided by 60), id., which was above the minimum wage.

On March 24, 2013, Mr. Fermin’s employment with Defendants terminated. Id. ¶ 22.

For the entirety of the period January 28, 2008 until March 24, 2013, Defendants did not pay Mr. Fermin time and one-half for the work he performed above forty hours per week as required by the FLSA and the NYLL. Id. ¶¶ 26-30. For the entirety of the period January 28, 2008 until October 31, 2011, which is when Mr. Fermin worked as a waiter for Defendants, Defendants took away a portion of Mr. Fermin’s tips, allowing him to keep only $40.00 per week. Id. ¶¶ 31-32, 34. For the same period that Mr. Fermin worked as a waiter, Defendants required that he give the $40.00 in weekly tips he was permitted to retain to a restaurant-wide tip sharing program with other employees. Id. ¶ 33.

ii. Mr. Moreno

On or about December 15, 2008, Defendants hired Mr. Moreno to work as a nonexempt dishwasher and kitchen helper/food preparer at Las Delicias. Id. ¶ 36. Mr. Moreno worked at Las Delicias in this capacity for the entire period of his employment for Defendants. Id.

Over the course of Mr. Moreno’s employment, he regularly worked over forty hours a week. Id. ¶ 37. Mr. Moreno worked six days a week for nine-and-one-quarter hours per day (12:00 p.m. until 9:15 p.m.) on Mondays, Wednesdays and Thursdays; ten hours per day (12:00 p.m. until 10:00 p.m.) on Fridays; and eleven hours per day (11:00 a.m. until 10:00 p.m.) on Saturdays and Sundays. Id. ¶ 38.

Throughout the entirety of his employment, Mr. Moreno did not receive proper minimum wages and/or overtime compensation. Id. ¶ 39. From December 15, 2008 until February 28, 2012, Mr. Moreno received a fixed cash salary of $360.00 per week. Id. As Mr. Moreno worked sixty hours per week during this period, Mr. Moreno’s wage amounted to $6.00 per hour ($360.00 divided by 60). Id.

From March 1, 2012 until March 24, 2013, Mr. Moreno received a fixed cash salary of $420.00 per week. Id. ¶ 40. As Mr. Moreno worked sixty hours per week during this period, Mr. Moreno’s wage amounted to $7.00 per hour ($420.00 divided by 60). Id.

On March 24, 2013, Mr. Moreno’s employment with Defendants terminated. Id.

For the entirety of the period December 15, 2008 until March 24, 2013, Defendants did not pay Mr. Moreno time and one-half for the work he performed above forty hours per week as required by the FLSA and the NYLL. Id. ¶¶ 38-40.

iii. Mr. Del Rosario

On or about March 13, 2009, Defendants hired Mr. Del Rosario to work as a nonexempt kitchen helper/food preparer at Las Delicias. Id. ¶41. Mr. Del Rosario worked at Las Delicias in this capacity for the entire period of his employment for Defendants. Id. ¶ 42.

Over the course of Mr. Del Rosario’s employment, he regularly worked over forty hours a week. Id. ¶ 43. Mr. Del Rosario worked six days a week for nine-and-one-quarter hours per day (12:00 p.m. until 9:15 p.m.) on Mondays, Wednesdays and Thursdays; ten hours per day (12:00 p.m. until 10:00 p.m.) on Fridays; and eleven hours per day (11:00 a.m. until 10:00 p.m.) on Saturdays and Sundays. Id. ¶ 44.

Throughout the entirety of his employment, Mr. Del Rosario did not receive proper minimum wages and/or overtime compensation. Id. ¶ 45. From March 13, 2009 until March 23, 2013, Mr. Del Rosario received a fixed cash salary of $320.00 per week. Id. As Mr. Del Rosario worked sixty hours per week during this period, Mr. Del Rosario’s wage amounted to $5.33 per hour ($320.00 divided by 60). Id.

From March 1, 2012 until March 24, 2013, Mr. Del Rosario received a fixed cash salary of $400.00 per week. Id. ¶ 40. As Mr. Del Rosario worked sixty hours per week during this period, Mr. Del Rosario’s wage amounted to $6.67 per hour ($400.00 divided by 60). Id.

On March 24, 2013, Mr. Del Rosario’s employment with Defendants terminated. Id. ¶ 42.

For the entirety of the period December 15, 2008 until March 24, 2013, Defendants did not pay Mr. Del Rosario time and one-half for the work he performed above forty hours per week as required by the FLSA and the NYLL. Id. ¶¶ 44-46.

c. Procedural History

On January 27, 2014, Plaintiffs filed this action against Defendants. Docket No. 1. Plaintiffs filed proof of service of the summons and Complaint upon Defendants on the docket. Docket Nos. h-6. Defendants did not answer or otherwise respond.

On May 15, 2014, this Court issued an Order stating that if Defendants failed to appear by June 13, 2014, Plaintiffs should request that the Clerk of the Court make an entry of default noting Defendants’ failure to respond. Docket Entry 5/15/2011.. Plaintiffs filed proof of service of this Order upon Defendants. Docket No. 7. Defendants did not answer or otherwise respond.

On June 13, 2014, Plaintiffs requested that the Clerk of the Court make an entry of default, Docket No. 8, which the Clerk of the Court did make that same day, Docket No. 9.

On August 25, 2014, Plaintiffs filed the instant default judgment motion. Docket Nos. 10-15. Plaintiffs filed proof of service upon Defendants of the motion and supporting papers on the docket. Docket No. 16. At this writing, Defendants have not responded.

The District Judge referred the default judgment motion to me for a report and recommendation. Docket Entry 11/6/201L

d. Plaintiffs’ Claims

Under the respective limitations periods of the FLSA and the NYLL, Plaintiffs seek from Defendants unpaid minimum wages, unpaid overtime compensation, unpaid and/or misappropriated tips, related liquidated damages, reasonable attorney’s fees, costs and expenses, and pre-judgment interest. Docket No. 1 ¶¶ 86, 102. Under the NYLL alone, Plaintiffs seek unpaid spread-of-hours premiums, and related liquidated damages. Id. ¶ 92-93.

e. Plaintiffs’ Affidavits And Other Documentary Evidence Submitted In Support Of Their Request For Damages

Plaintiffs have submitted affidavits and other documents as evidence in order to support their claims.

To begin, each Plaintiff has submitted an individualized affidavit attesting to the time period he worked for Defendants, the nature of that work, the hours he worked, and the compensation he received. Docket No. 11 (Mr. Fermin’s affidavit); Docket No. 12 (Mr. Moreno’s affidavit); Docket No. 13 (Mr. Del Rosario’s affidavit). Mr. Fermin’s affidavit is slightly longer than Mr. Moreno’s and Mr. Del Rosario’s affidavits because Mr. Fermín is the only Plaintiff who earned tips; his affidavit describes how Defendants withheld some of his tips and obligated him to contribute the remaining tips into a restaurant tip pool. Docket No. 11.

In addition, Plaintiffs submit an affidavit from their attorney Justin Cilenti in which Mr. Cilenti, in support of Plaintiffs’ petition for attorney’s fees, states his hours and billing rate with an explanation as to why he believes it is justified. Docket No. U.

Finally, Mr. Cilenti’s affidavit attests to the veracity of three exhibits he has prepared for the Court to aid in its determination of damages. Id. The first exhibit is a spreadsheet calculating Plaintiffs’ wages paid and wages due with other damages calculations. Docket No. H-L The second exhibit is a timesheet itemizing the hours that Mr. Cilenti and a paralegal Jennett Pena spent litigating this case, and calculating a total figure for attorney’s and paralegal’s fees. Docket No. 14-5. The third exhibit is a summary of the expenses incurred litigating this case. Docket No. 14-6.

II. Legal Standard

Federal Rule of Civil Procedure (“FRCP”) 55 establishes a two-step procedure by which a party may obtain a default judgment. See Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 185-86 (2d Cir.2015) (citing FRCP 55); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir.1993) (same); see also City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir.2011); N.Y. v. Green, 420 F.3d 99, 104 (2d Cir.2005). First, pursuant to FRCP 55(a), if a party has failed to plead or otherwise defend, the Clerk of the Court must enter a certificate of default by making a notation on the record. Fed.R.Civ.P. 55(a). Second, after this entry of default, if the party still fails to appear or move to set aside the default, then the court may enter a default judgment. Fed.R.Civ.P. 55(b).

The trial court has “sound discretion” to grant or deny a motion for a default judgment. Enron Oil, 10 F.3d at 95. This discretion is not absolute — the Second Circuit has an “oft-stated preference” for judging disputes on the merits. Id. In fact, the Second Circuit has warned courts that granting a default judgment is an “extreme sanction” that is to be used as a tool of last resort. Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.1981). Accordingly, the district court must carefully balance the concern of expeditiously adjudicating cases, on the one hand, against the responsibility of giving litigants a chance to be heard, on the other. See Enron Oil, 10 F.3d at 96. With these dual goals of conserving judicial resources and affording due process, doubts should generally be construed in favor of the defaulting party. See id.

On a default judgment motion, the defendant is deemed to have admitted all of the well-pleaded factual allegations in the plaintiffs complaint, except for claims relating to damages. See Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Foundation Contractors, Inc., 699 F.3d 230, 234 (2d Cir.2012); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981); see also Bricklayers, 779 F.3d at 189-90; Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992); see generally Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir.2014) (under both a motion to dismiss and a motion for default, the plaintiff must proffer well-pleaded allegations). Once the defendant is found to be in default, the plaintiff bears the burden of showing that he is entitled to recovery. See Danser v. Bagir Int’l, 571 Fed.Appx. 54, 55 (2d Cir. 2014); Taizhou Zhongneng Imp. & Exp. Co., Ltd v. Koutsobinas, 509 Fed.Appx. 54, 58 (2d Cir.2013); Ferrara v. PJF Trucking LLC, No. 13 Civ. 7191(JS)(AKT), 2014 WL 4725494, at *5 (E.D.N.Y. Sept. 22, 2014); State Farm Mut. Auto. Ins. Co. v. Kalika, No. 04 Civ. 4631(CBA)(RML), 2007 WL 4326920, at *7 (E.D.N.Y. Dec. 7, 2007).

A plaintiff must prove that the compensation he or she seeks relates “to the damages that naturally flow from the injuries pleaded.” Greyhound Exhibit-group, 973 F.2d at 159. Generally, the court may make this determination through an evidentiary hearing or proceeding. Fed.R.Civ.P. 55(b)(2); Fustok v. ContiCommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y.1988), aff'd, 873 F.2d 38 (2d Cir.1989). A court is not required to conduct a hearing if there is a basis for the damages specified in the default judgment. See Fed.R.Civ.P. 55(b)(2); Cement & Concrete Workers, 699 F.3d at 234 (“Together, ‘Rule 55(b)(2) and relevant case law give district judges much discretion in determining when it is ‘necessary and proper’ to hold an inquest on damages.’ ” (quoting Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir.1993))); Finkel v. Romanowicz, 577 F.3d 79, 87 (2d Cir.2009) (“Rule 55(b) commits this decision to the sound discretion of the district court.”); see also Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974) (stating that while a default judgment constitutes an admission of liability, the amount of damages needs to be proven, unless the amount is liquidated or can be mathematically calculated). Therefore, a court may rely on “detailed affidavits and documentary evidence,” in addition to the plaintiffs complaint, to determine the sufficiency of a default judgment claim. Transatlantic Marine Claims Agency v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997); see Bricklayers, 779 F.3d at 189-90; Cement & Concrete Workers, 699 F.3d at 234; Tamarin, 13 F.3d at 54. The amount of damages awarded, if any, must be ascertained “with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999); see Cement & Concrete Workers, 699 F.3d at 232.

III. Discussion

a. Service

“A default judgment is ordinarily justified where a defendant fails to respond to the complaint.” SEC v. Anticevic, No. 05 Civ. 6991(KMW), 2009 WL 4250508, at *2 (S.D.N.Y. Nov. 30, 2009) (citing Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir.1984)). The Court should consider whether Plaintiffs have shown that Defendants had notice about the action and an opportunity to defend against it. I look to the service here to see if Defendants had notice of the suit. FRCP 4(e)(1) allows service to be made in accordance with the service rules of the state where the district is located or service is made.

I am satisfied that Plaintiffs properly .served the corporate Defendant Las Deli-cias insofar as Plaintiffs’ process server delivered the papers to Alex Fuentes, a self-described managing agent of Las Deli-cias appearing of suitable age (35 years), at Las Delicias’s place of business of 43-07 104th Street, Corona, New York 11368, on February 7, 2014. See New York Business Corporation Law (“NY BCL”) § 306(a); Docket No. 4.

As for the Individual Defendants, New York Civil Practice Law and Rules (“NY CPLR”) § 308(2) allows for service of process

by delivering the summons within the state to a person of suitable age and discretion at the actual place of business ... of the person to be served and by ... mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other ....

N.Y. CPLR § 308(2). I am also satisfied that Plaintiffs properly served the Individual Defendants with notice of this action. Docket Nos. 5, 6. Plaintiffs’ process server delivered the papers to a co-worker of majority age (the same Mr. Fuentes mentioned above) of the Individual Defendants at their actual place of business, namely Las Delicias (at the same address mentioned above). Id. In addition, Plaintiffs verified with Mr. Fuentes that the Individual Defendants are not, to his knowledge, in the military service as that term is defined in relevant statutes. Id. Finally, Plaintiffs’ process server sent a copy of the same to the Individual Defendants via United States mail within twenty days as directed by N.Y. CPLR § 308(2). Id.

In sum, I find that service was proper under both the N.Y. BCL as to Las Delici-as and under the N.Y. CPLR as to the Individual Defendants.

b. The Factors Relevant To A Default Judgment Are Satisfied

When considering whether to grant a default judgment, a court must be “guided by the same factors [that] apply to a motion to set aside entry of a default.” First Mercury Ins. Co. v. Schnabel Roofing of Long Island, Inc., No. 10 Civ. 4398(JS)(AKT), 2011 WL 883757, at *1 (E.D.N.Y. Mar. 11, 2011); see Enron Oil, 10 F.3d at 96. These factors include: (1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense. See Swarna v. Al-Awadi, 622 F.3d 123, 142 (2d Cir.2010); Enron Oil, 10 F.3d at 96.

As for the first factor, a defendant’s failure to respond to the complaint is sufficient to demonstrate willfulness. See Bds. of Trs. of Ins., Annuity, & Apprenticeship Training Funds of Sheetmetal Workers’ Int’l Ass’n, Local Union No. 137 v. Frank Torrone & Sons, Inc., No. 12 Civ. 3363(KAM)(VMS) (E.D.N.Y. Feb. 3, 2014) (ECF No. 17 at 6) (the defendant’s nonappearance and failure to respond equated to willful conduct), report & recommendation adopted, No. 12 Civ. 3363(KAM)(VMS), 2014 WL 674098, at *4 (E.D.N.Y. Feb. 3, 2014); Traffic Sports USA v. Modelos Restaurante, Inc., No. 11 Civ. 1454(ADS)(AKT), 2012 WL 3637585, at *2 (E.D.N.Y Aug. 1, 2012) (same), report & recommendation adopted, No. 11 Civ. 1454(ADS)(AKT), 2012 WL 3626824 (E.D.N.Y. Aug. 22, 2012); cf. New York v. Green, 420 F.3d 99, 109 (2d Cir.2005) (in the context of a motion to vacate a default judgment, the defendants’ failure to respond to the complaint or “take action after receiving notice that the clerk had entered a default against them,” supported a finding of willfulness); Here, Plaintiffs properly served Defendants with notice, but Defendants neither answered nor responded in ..any other way, nor did they request an extension of time in which to respond. Defendants’ failure to respond to the pleadings therefore establishes willfulness.

Concerning the second factor, Defendants’ failure to respond and Plaintiffs’ efforts to prosecute their case are sufficient to demonstrate that ignoring the default would prejudice Plaintiffs, “ ‘as there are no additional steps available to secure relief in this Court.’” Flanagan v. N. Star Concrete Constr., Inc., No. 13 Civ. 2300(JS)(AKT), 2014 WL 4954615, at *7 (E.D.N.Y. Oct. 2, 2014) (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06 Civ. 14226(RLC)(RLE), 2008 WL 5560868, at *2 (S.D.N;Y. Oct. 27, 2008)); see Joseph v. HDMJ Rest., Inc., 970 F.Supp.2d 131, 148 (E.D.N.Y.2013) (same).

Third, Defendants cannot establish a meritorious defense, because where a defendant has not “filed an answer, there is no evidence of any defense.” Bridge Oil Ltd., 2008 WL 5560868, at *2 (citing Mason Tenders Dist. Council v. Duce Constr. Corp., No. 02 Civ. 9044(LTS)(GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003)); see Joseph, 970 F.Supp.2d at 143 (“Where a defendant fails to answer the complaint, courts are unable to make a determination whether the defendant has a meritorious defense to the plaintiffs allegations, and, accordingly, this factor weighs in favor of granting a default judgment.”). As all three factors are satisfied, a default judgment would be proper in the present circumstances.

Accordingly, I find that Defendants’ failure to answer or otherwise respond to the Complaint constitutes an admission of the allegations contained therein as fact for the purposes of an inquiry into liability such that I now proceed to consider whether those facts establish Defendants’ liability for Plaintiffs’ FLSA, NYLL and WTPA claims.

c. Liability

i. Plaintiffs Qualify For the FLSA’s And The NYLL’s Protections As Employees Of Defendants

1. Plaintiffs Qualify For The FLSA’s Protections

To establish a claim under the FLSA for minimum wage or overtime compensation, a plaintiff must show that he or she is an “employee” of the defendant within the meaning of the FLSA and that the defendant is an “enterprise engaged in commerce.” See 29 U.S.C. §§ 206(a), 207(a); see Chen v. Major League Baseball, 6 F.Supp.3d 449, 453-54 (S.D.N.Y.2014).

Plaintiffs have shown that they are employees within the FLSA’s definition of that term. Under the FLSA, an “employee” is “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). Insofar as Plaintiffs’ Complaint alleges that Defendants employed Plaintiffs within this statutory meaning, “[i]t follows ... that for purposes of this default, [they] qualif[y] as ... ‘employee[s]’ under the FLSA.” Garcia v. Badyna, No. 13 Civ. 4021(RRM)(CLP), 2014 WL 4728287, at *5 (E.D.N.Y. Sept. 23, 2014); see Vein v. Velocity Exp., Inc., 666 F.Supp.2d 300, 307 (E.D.N.Y.2009) (stating that the “ultimate question is ... ‘whether, as a matter of economic reality, the worker[] depend[s] upon someone else’s business for the opportunity to render service or [is] in business for [himself]’ ”) (quoting Godoy v. Rest. Opportunity Ctr. of N.Y., Inc., 615 F.Supp.2d 186, 192-93 (S.D.N.Y.2009)).

It should be noted that the FLSA “contains a litany of exemptions” to qualified employees. Chen, 6 F.Supp.3d at 454 (citing 29 U.S.C. § 213). Among the employees exempt from the FLSA’s minimum-wage provisions are “bona fide ‘professional’ employees, a group that includes employees compensated on a salary basis at a rate of not less than $455.00 per week and whose primary duties require advanced knowledge in a field of science or learning.” Ghosh v. Neurological Servs. of Queens, No. 13 Civ. 1113(ILG)(CLP), 2015 WL 431807, at *3 (E.D.N.Y. Feb. 3, 2015) (quoting 29 U.S.C. § 213(a)(1) and explaining that the provisions of Section 206 do not apply to bona fide executive, administrative or professional employees or to employees working in the capacity of outside salesman); see 29 C.F.R. §§ 541.300(a) (elaborating upon who constitutes an “employee employed in a bona fide capacity”), 541.301 (elaborating upon the term “learned professionals”).

“[T]he issue of whether [an employee’s responsibilities] render the employee exempt from the FLSA’s overtime provision is a question of law,” McBeth v. Gabrielli Truck Sales, Ltd., 768 F.Supp.2d 383, 387 (E.D.N.Y.2010) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986)). Plaintiffs’ Complaint states that they are all non-exempt employees under the FLSA, Docket No. 1 ¶¶ 21, 36, 41, but this does not suffice to establish the matter because, “[although factual allegations in a complaint are deemed admitted upon default, legal conclusions are not,” Bricklayers Ins. & Welfare Fund v. Golden Vale Constr., Inc., No. 06 Civ. 1028(NG)(SMG), 2007 WL 3232244, at *4 (E.D.N.Y. Oct. 31, 2007). Other aspects of Plaintiffs’ Complaint do establish the matter, i.e., the fact that Plaintiffs’ respective jobs as waiter, kitchen helper/food preparer, cook and dishwasher all constitute non-exempt employment under the FLSA. Docket No. 1 ¶¶ 20-21, 36, 41; see Garcia v. Pancho Villa’s of Huntington Vill., Inc., No. 09 Civ. 486(ETB), 2011 WL 1431978, at *3-4 (E.D.N.Y. Apr. 14, 2011) (finding that the FLSA regulations did not exempt the plaintiff from the FLSA’s protections due to his position as a cook, which did not make him an “executive employee,” a “creative professional,” or a “learned professional.”); Espinoza v. 953 Assocs. LLC, 280 F.R.D. 113, 130 (S.D.N.Y.2011) (certifying an FLSA class including servers, bus-persons, food preparers and dishwashers); Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 320-22 (S.D.N.Y.2007) (stating that waiters, bartenders, runners and/or bussers were non-exempt employees under the FLSA).

Plaintiffs have also shown that Las Delicias is an “enterprise engaged in commerce.” The FLSA defines that term as an enterprise 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 that has an “annual gross volume of sales made or business done ... not less than $500,000.” 29 U.S.C. § 203(s)(l)(A)(i)-(ii).

Plaintiffs’ Complaint restates this statutory definition without providing any additional facts. Docket No. 1 ¶¶ 11, 71, 73 (reciting 29 U.S.C. § 203(s)(1)(A)(i)-(ii)’s language). In Huerta v. Victoria Bakery, No. 10 Civ. 4754(RJD)(JO), 2012 WL 1107655, at *2 (E.D.N.Y. Mar. 30, 2012), the court considered whether allegations such as these sufficed to prove that a business was an “enterprise engaged in commerce” in an FLSA action in default posture. According to this court, the HueHa complaint, which dealt with the FLSA claims of breadmakers at a bakery, did

provide[ ] a sufficient basis ... for inferring the requisite interstate commerce connection under the sensible approach adopted by other judges in this district. The complaint alleges that [the] plaintiffs ... were employed as breadmakers in a Brooklyn-based bakery with over half a million dollars in annual sales. It is inconceivable that some of the bread-making materials used by [the] plaintiffs did not originate out of state or that the bakery did not sell its products outside the State of New York.

Id.; see also Locke v. St. Augustine’s Episcopal Church, 690 F.Supp.2d 77, 88 (E.D.N.Y.2010) (stating that the standard is met “where the employer’s business consumed products in the course of operation”).

Similarly, here, it is reasonable to infer that the myriad goods necessary to operate a Peruvian restaurant with an eat-in dining area and over $500,000.00 in annual sales do not exclusively come from New York State. Docket No. 1 ¶¶ 11, 20, 71, 73. As a restaurant, it is reasonable to infer that Las Delicias requires a wide variety of materials to operate, for example, foodstuffs, kitchen utensils, cooking vessels, cleaning supplies, paper products, furniture, and more. It is also reasonable to infer that some of these materials moved or were produced in interstate commerce. See, e.g., Archie v. Grand Centr. P’ship, Inc., 997 F.Supp. 504, 530 (S.D.N.Y.1998) (Sotomayor, J.) (in the context of an FLSA action, considering whether the defendants’ maintenance employees could be said to have “handle[d] goods or materials that ha[d] moved or been produced in interstate commerce,” and finding that the maintenance workers had, because some of the defendants’ “bags, brooms, shovels, pails, [etc.]” “undoubtedly moved in interstate commerce to New York City”).

2. Plaintiffs Qualify For The NYLL’s Protections

To recover under the NYLL, Plaintiffs must prove that they were “employees” and that Defendants were “employers” as defined by the statute. See Lauria v. Heffernan, 607 F.Supp.2d 403, 407-08 (E.D.N.Y.2009). “Unlike the FLSA, the NYLL does not require that a defendant achieve a certain minimum in annual sales or business in order to be subject to the law.” Garcia v. Badyna, No. 13 Civ. 4021(RRM)(CLP), 2014 WL 4728287, at *6 (E.D.N.Y. Sept. 23, 2014).

Plaintiffs’ burden in establishing that they are “employees” entitled to NYLL protections is similar to the definition they had to satisfy under the FLSA. As “[t]he New York Labor Law ‘is the state analogue to the federal FLSA,’” D’Arpa v. Runway Towing Corp., No. 12 Civ. 1120(JG), 2013 WL 3010810, at *18 (E.D.N.Y. June 18, 2013) (quoting Santillan v. Henao, 822 F.Supp.2d 284, 292 (E.D.N.Y.2011)), “[t]he 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) (emphasis added). One way in which the NYLL’s definitions are “nearly identical” to the FLSA’s definitions, and not identical, is that the New York common law test for who constitutes an employer for the purposes of the NYLL “focuses more on ‘the degree of control exercised by the purported employer’ ” over the purported employee, “as opposed to the ‘economic reality of the situation.’ ” Hart v. Rick’s Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y.2013). Plaintiffs’ Complaint sufficiently alleges that Plaintiffs were employees within the meaning of Sections 2 and 651 of the NYLL. Docket No. 1 ¶¶ 8, 88. To the extent there is any doubt as to whether Plaintiffs are employees, I consider Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193, 770 N.Y.S.2d 692, 802 N.E.2d 1090 (2003), in which the New York Court of Appeals set forth five factors relevant to determining control under the common law test, including whether the worker: “(1) worked at his own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer’s payroll; and (5) was on a fixed schedule.” Bynog, 1 N.Y.3d at 198, 770 N.Y.S.2d 692, 802 N.E.2d at 1090.

As for the first Bynog factor, Plaintiffs did not work at their own convenience insofar as they had to arrive at Las Delicias at a specific hour to begin their shifts, and their shifts ended at a specific hour as well. Docket No. 1 ¶¶ 21-46; cf. Sellers v. Royal Bank of Canada, No. 12 Civ. 1577(KBF), 2014 WL 104682, at *6 (S.D.N.Y. Jan. 8, 2014) (finding that the plaintiff worked at his own convenience because he could arrive and leave work whenever he liked, and take breaks at his pleasure as well). The fourth and fifth factors fall in Plaintiffs’ favor as well, as Plaintiffs were on Defendants’ set payroll (receiving anywhere from $380.00 to $480.00 per week), and they worked fixed schedules. Docket No. 1 ¶¶ 21-4,6; cf. Malouf v. Equinox Holdings, Inc., 38 Misc.3d 1223(A), 2012 WL 7154115, at *10 (N.Y.Sup. Oct. 22, 2012) (stating that the plaintiff, who sporadically appeared as a guest class instructor at the defendant gym, did not meet the payroll or fixed schedule Bynog factor). On the other hand, the second and third Bynog factors are neutral, as the Complaint is silent as to whether Plaintiffs were restricted from engaging in other employment and as to whether they received any fringe benefits. In any event, concerning other employment and fringe benefits, “these [two] factors, in context, merit modest weight.” Hart, 967 F.Supp.2d at 925.

In sum, Plaintiffs qualify as employees under the NYLL. Docket No. 1 ¶¶ 8, 88.

ii. The Individual Defendants’ Status As Plaintiffs’ Employers Under The FLSA And The NYLL, And Joint And Several Liability

The Court next considers the Individual Defendants’ liability under the FLSA and the NYLL.

1. The Individual Defendants Are Plaintiffs’ Employers Under The FLSA

The FLSA defines the term “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). “When it comes to ‘employer’ status under the FLSA, control is key.” Glatt, 293 F.R.D. at 525. Absolute control is not a prerequisite. Whether ah individual is considered an employer for the purposes of FLSA liability “does not require continuous monitoring of employees, looking over their shoulders at all times, or any sort of absolute control of one’s employees.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir.1999).

In Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir.1984), the Second Circuit outlined a multi-factor test, grounded in “economic reality,” for determining whether there is an employer-employee relationship between an individual defendant and an FLSA plaintiff. The Carter factors ask:

whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.

Id. (quoting Bonnette v. Cali. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.1983)); see Irizarry v. Catsimatidis, 722 F.3d 99, 105-06 (2d Cir.2013) (discussing the Carter factors in determining an individual defendant’s individual liability for an FLSA violation). “No one of the four [Carter ] factors standing alone is dis-positive”; instead, the “economic reality test encompasses the totality of the circumstances.” Herman, 172 F.3d at 139.

Plaintiffs’ allegations that both Individual Defendants had the power to hire and fire the employees, to determine rates of pay and work schedules and to supervise and control the employees’ work establish three of the Carter factors and depict an “economic reality” in which the Individual Defendants were Plaintiffs’ joint employers along with Las Delicias. Docket No. 1 ¶¶ 9-10; see Teri, 980 F.Supp.2d at 376 (“[T]he Court concludes that no reasonable jury considering the ‘economic realities’ of the [parties’] relationship could find that [the individual defendant] was not [the plaintiffs’ joint employer under the FLSA and NYLL.”).

Plaintiffs concede that one of the Carter factors is not satisfied vis-a-vis the Individual Defendants, namely that they maintained employment records, and that is because Plaintiffs alleged that sufficient employment records were not kept at all. Docket No. 1 ¶¶ 51, 82. The lack of one Carter factor is not fatal to Plaintiffs’ claims. See generally Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 145 (2d Cir.2008). In Zheng v. Liberty Apparel Co., 355 F.3d 61, 71 (2d Cir.2003), the Second Circuit observed that it had in another decision affirmed a district court’s determination that an individual defendant jointly employed a company’s employees “where the [individual defendant] exercised three of the four employer prerogatives identified in Carter.” (citing Herman, 172 F.3d at 139). The Zheng Court reiterated that with respect to Carter,

economic reality is determined based upon all the circumstances, and any relevant evidence may be examined so as to avoid having the test confined to a narrow legalistic definition.... We did not suggest — indeed, we expressly denied — that the four [Carter ] factors ... are the exclusive touchstone of the joint employment inquiry under the FLSA.

Zheng, 355 F.3d at 71 (citing Herman, 172 F.3d at 139) (emphasis in the original).

As Plaintiffs have demonstrated that the Individual Defendants satisfy three of the four Carter factors, the Individual Defendants are Plaintiffs’ employers and should be held individually liable for the FLSA violations. See Galeana v. Lemongrass on Broadway Corp., — F.Supp.3d -, -, No. 10 Civ. 7270(GBD)(MHD), 2014 WL 1364493, at *16 (S.D.N.Y. Apr. 4, 2014) (stating that satisfaction of the Carter test showed that the individual defendant was the FLSA plaintiffs joint employer along with the corporate defendant). The fact that Individual Defendants did not keep employment records does not undermine this finding because no employment records were kept; thus, the economic reality is that all employer tasks that were handled by the Individual Defendants.

2. The Individual Defendants Are Plaintiffs’ Employers Under The NYLL

“Courts have interpreted the definition of ‘employer’ under the [NYLL] coextensively with the definition used by the FLSA.” Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253, 308 n. 21 (S.D.N.Y.2011); see Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 335 n. 13 (S.D.N.Y.2010); Jiao v. Shi Ya Chen, No. 03 Civ. 165(DF), 2007 WL 4944767, at *9 n. 12 (S.D.N.Y. Mar. 30, 2007). While “the New York Court of Appeals has not yet resolved whether the NYLL’s standard for employer status is coextensive with the FLSA’s ... there is no case law to the contrary.” Wang v. LW Rest, Inc., 81 F.Supp.3d 241, 258, No. 12 Civ. 5008(MKB), 2015 WL 363871, at *13 (E.D.N.Y. Jan. 29, 2015) (quoting Hart, 967 F.Supp.2d at 940).

As a result, in light of my finding that the Individual Defendants were Plaintiffs’ employers for the purposes of FLSA liability, I find that the Individual Defendants were Plaintiffs’ employers for the purposes of NYLL liability as well. See Apple v. Atlantic Yards Dev. Co., LLC, No. 11 Civ. 5550(JG), 2014 WL 5450030, at *6-9 (E.D.N.Y. Oct. 27, 2014) (concluding that the defendants were not the plaintiffs’ employers under the FLSA or the NYLL using the Carter analysis, stating that the NYLL was not addressed separately because its definitions were nearly identical to the FLSA’s, and “courts use the same tests to determine joint employment under both the NYLL and the FLSA”); Yang v. ACBL Corp., 427 F.Supp.2d 327, 342 n. 25 (S.D.N.Y.2005) (“The ‘economic reality’ test will be used to determine whether [the individual defendant] is [the plaintiffs] ‘employer’ as defined under both state and federal law, as there is general support for giving [the] FLSA and the [NYLL] consistent interpretations.”) (quotation & citation omitted).

3. Defendants Are Joint And Severally Liable

As the Court has found that Las Delici-as and the Individual Defendants were jointly Plaintiffs’ employers, each Defendant is jointly and severally liable under the FLSA and the NYLL for any damages award made in Plaintiffs’ favor. See Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 685 (S.D.N.Y.2011) (allegations that an individual defendant “was an owner, partner, or manager,” coupled with his default, was sufficient to qualify him as an FLSA and a NYLL employer, and to impose joint and several liability with corporate defendants for wage law violations); see also Ahmed v. Subzi Mandi, Inc., No. 13 Civ. 3353(CBA)(RER), 2014 WL 4101224, at *4 (E.D.N.Y. May 27, 2014) (same), report & recommendation adopted, No. 13 Civ. 3353(CBA)(RER), 2014 WL 4101247 (E.D.N.Y. Aug. 18, 2014); Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 129 (E.D.N.Y.2011) (same).

i. The Relevant Limitations Periods Under The FLSA And The NYLL

“The statute of limitations under the FLSA is two years, ‘except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.’ ” Rosario v. Valentine Ave. Discount Store, Co., Inc., 828 F.Supp.2d 508, 519 (E.D.N.Y.2011) (quoting 29 U.S.C. § 255(a), which states the applicable statute of limitations for claims relating to “unpaid minimum wages, unpaid overtime compensation, or liquidated damages”). Here, as Plaintiffs allege that Defendants’ failure to pay minimum wage was knowing and willful, the three-year limitations period applies. See Easterly v. Tri-Star Transport Corp., No. 11 Civ. 6365(VB), 2015 WL 337565, at *6 (S.D.N.Y. Jan. 23, 2015) (“[A]s [the plaintiff alleges that [the defendant in default] committed FLSA violations willfully, ... the three-year federal period applies.”) (collecting cases).

In contrast, the NYLL establishes a six-year limitations period. See N.Y. Lab Law §§ 198(3), 663(3); Man Wei Shiu v. New Peking Taste Inc., No. 11 Civ. 1175(NGG)(RLM), 2014 WL 652355, at *10 (E.D.N.Y. Feb. 19, 2014). Therefore, Plaintiffs may recover under the NYLL for claims arising outside of the FLSA’s three-year limitations period. See Pinzon v. Paul Lent Mech. Sys. Inc., No. 11 Civ. 3384(DRH)(WDW), 2012 WL 4174725, at *3 (E.D.N.Y. Aug. 21, 2012), report & recommendation adopted, No. 11 Civ. 3384(DRH)(WDW), 2012 WL 4174410 (E.D.N.Y. Sept. 19, 2012).

As the Complaint was filed on January 27, 2014, the state law limitations period includes claims dated from January 27, 2008 to January 27, 2014, while the federal law limitations period includes claims dated from January 27, 2011 to January 27, 2014. Only Mr. Fermin’s employment began prior to the NYLL’s six-year limitations period. Docket No. 1 ¶ 20. Plaintiffs have not advanced and the Court has not considered any claims related to Mr. Fer-min’s employment from April 18, 2005 to January 26, 2008. Id.

ii. Defendants’ Liability Under The FLSA And The NYLL

1. Defendants May Not Benefit From The Tip Credit Provisions Of The FLSA And The NYLL Due To Their Tip Practices, And Defendants Are Liable For Repayment Of Mr. Fer-min’s Misappropriated Tips Under The NYLL

Under the FLSA and the NYLL, employers in some circumstances may apply a tip credit against the full minimum wage that would otherwise be owed to an employee, such as a waiter, who regularly receives tips. See 29 U.S.C. § 203(m) (the federal tip credit provision); N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.3 (the tip credit provision of the Hospitality Wage Order); see generally N.Y. Comp.Codes R. & Regs. tit. 12, §§ 146-1.1(a), 146-3.1(a) (the Hospitality Wage Order applies to “any restaurant”); see also Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 240 (2d Cir.2011) (explaining the application of the tip credit under the FLSA); Barenboim v. Starbucks Corp., 698 F.3d 104, 110 n. 1 (2d Cir.2012) (explaining the application of the tip credit under the NYLL); Mendez v. Int’l Food House Inc., No. 13 Civ. 2651(JPO), 2014 WL 4276418, at *3 (S.D.N.Y. Aug. 28, 2014) (discussing the federal and New York tip credit provisions).

Mr. Fermín is the only Plaintiff who worked for Defendants as a waiter, which he did from April 18, 2005 through October 31, 2011. Docket No. 1 ¶¶ 20-21. During that time, he earned around $700.00 a week in tips, $660.00 of which was “taken away from him by [the] Defendants”; some of these misappropriated tips were retained by Defendants, and some were given to “employees who do not normally and customarily receive tips as part of their employment.” Docket No. 1 ¶¶ 31, 34; Docket No. 11 ¶ 19. Mr. Fermín “was permitted to retain only $40.00 per week in tips.... ” Docket No. 11 ¶¶ 18-19. As the only customarily tipped employee among Plaintiffs, Mr. Fermín thus initially presents a .legal scenario that differs in part from the circumstances presented by his co-Plaintiffs, in that the Court must first determine whether Defendants were entitled to any tip credit against his wages.

The tip credit is inapplicable in this case. The FLSA provides that “[a]n employer may not avail itself of the tip credit if it requires [tipped] employees to share their tips with employees who do not customarily and regularly receive tips,” for example, managers or kitchen workers. Fonseca v. Dircksen & Talleyrand Inc., No. 13.Civ. 5124(AT), 2014 WL 1487279, at *2 (S.D.N.Y. Apr. 11, 2014); see 29 U.S.C. § 203(m); Wicaksono v. XYZ 18 Corp., No. 10 Civ. 3635(LAK)(JCF), 2011 WL 2022644, at *4 (S.D.N.Y. May 2, 2011), report & recommendation adopted, No. 10 Civ. 3635(LAK)(JCF), 2011 WL 2038973 (S.D.N.Y. May 24, 2011). Similarly, the NYLL provides that “[n]o employer ... shall demand ... any part of the gratuities received by an employee, or retain any part of a gratuity[.]” NY. Lab. Law § 196-d (stating some exceptions not relevant here); N.Y. Comp.Codes R. &' Regs, tit. 12, §§ 146-2.14(e) (“[Tip-e]ligible employees must perform, or assist in performing, personal service to patrons at a level that is a principal and regular part of their duties and is not merely occasional or incidental.”), 146-2.16(b) (“Only food service workers may receive distributions from the tip pool.”). “Thus, an employer loses its entitlement to the tip credit when it requires tipped employees to share tips with (1) employees who do not provide direct customer service or (2) managers.” Shahriar, 659 F.3d at 240.

Mr. Fermín alleges that Defendants, including the Individual Defendants who act as managers, misappropriated his tip money for themselves, and also that Defendants required him to participate in a tip-pooling arrangement at Las Delicias which saw Mr. Fermin’s money distributed to “employees who do not normally and customary receive tips as part of their employment.” Docket No. 1 ¶ 33; Wicaksono, 2011 WL 2022644, at *5 (stating that the defendant was not entitled to a tip credit under the FLSA because the defendant obligated the plaintiffs to share their tips with kitchen staff and a manager).

Additionally, under both the FLSA and the Hospitality Wage Order, an employer is not eligible for the tip credit unless it provides the employee with notice of the employer’s intent to utilize the tip credit. 29 U.S.C. § 203(m) (the employee must be “informed by the employer of the provisions of this subsection”); N.Y. Comp. Codes R. & Regs. tit. 12, § 146-2.2(a) (requiring written notice of “the amount of tip credit, if any, to be taken from the basic minimum hourly rate”); see N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.3; Gonzalez v. Jane Roe Inc., No. 10 Civ. 1000(NGG)(RML), 2014 WL 4175730, at *3 n. 4 (E.D.NY. Aug. 20, 2014) (discussing the federal and state tip credit notice requirements; collecting cases); Wicaksono, 2011 WL 2022644, at *5 (same). Here, Mr. Fermín asserts that' he was not provided with such notice. Docket No. 11 ¶25. On the record before the Court, Defendants are not eligible for the tip credit, and the Court will apply the full minimum wage when considering Mr. Fermin’s claims.

Mr. Fermín also asks the Court to hold Defendants liable for repaying him the tips that Defendants illegally retained. The misappropriation of tips is prohibited by the NYLL. N.Y. Lab. Law § 196-d (“No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee.”); see N.Y. Comp.Codes R. & Regs. tit. 12, §§ 146-2.14, 146-2.15, 146-2.16 (prohibiting tip sharing and tip pooling with employees for whom “personal service to patrons” is not “a principal and regular part of their duties”); cf. Barenboim v. Starbucks Corp., 698 F.3d 104, 106 (2d Cir.), certified question answered, 21 N.Y.3d 460, 972 N.Y.S.2d 191, 995 N.E.2d 153 (2013) (“[E]mployees who regularly provide direct service to patrons remain tip-pool eligible even if they exercise a limited degree of supervisory responsibility”), answer to certified question conformed to, 549 Fed. Appx. 1 (2d Cir.2013). The Complaint alleges that Mr. Fermín worked as a waiter from April 18, 2005 through October 31, 2011, and that during that time Defendants illegally misappropriated tips from him every week. Docket No. 1 ¶¶ 20-21. As these tips were shared with employees who did not customarily receive tips, including the Individual Defendants (who were joint owners and managers rather than service workers), see Docket No. 1 ¶¶ 8-10, 33-34, Plaintiffs have established that Defendants are liable, under the NYLL, for the misappropriation of Mr. Fermin’s tips. See Gunawan, 897 F.Supp.2d at 89 (the plaintiff was “entitled to the reimbursement of the portion of her tips the Restaurant improperly required her to share with the chef’).

Finally, the appropriate time period for the tip misappropriation claim is shorter than what Mr. Fermín now alleges in support of this motion. The Complaint alleged that, as of November 1, 2011, Mr. Fermín was promoted at Las Delicias to work as a cook, id. ¶21, which is not typically a job for which a worker receives tips. See Chhab v. Darden Rests., Inc., No. 11 Civ. 8345(NRB), 2013 WL 5308004, at *6 (S.D.N.Y. Sept. 20, 2013) (“[Certain back-of-the-house restaurant staff, including cooks and dishwashers, cannot participate in valid tip pools under the FLSA because they do not interact with customers”; collecting cases). Moreover, the Complaint thrice describes Mr. Fermin’s tip problems as occurring “[d]uring the period of time while [Mr. Fermín was] performing work as a waiter,” Docket No. 1 ¶¶ 31-33, and Plaintiffs did not allege the same tip problems occurred when Mr. Fer-mín worked as a cook, id. ¶¶21, 29-30. Nevertheless, in the damages calculation submitted in support of the present motion, Mr. Fermin’s claim for Defendants’ return of misappropriated tips was not limited to the time he worked as a waiter, and instead covered the maximum time period of January 27, 2008 through March 24, 2013. Docket No. lk-k at 2; see Docket No. 11 ¶ 19 (in his affidavit, Mr. Fermín states that he received “approximately $700 in tips each week through October 2011, and approximately $600 in tips each week thereafter”). To the extent Mr. Fer-mín is now claiming tip garnishment for the time he worked as a cook, such a claim exceeds the well-pleaded allegations, and it must be disregarded. Moreover, this claim is inconsistent with his position that Defendants unlawfully misappropriated tips by requiring him to share his tips with “employees who do not normally and customarily receive tips as part of their employment.” Docket No. 1 ¶¶ 33-34. Therefore, Mr. Fermín has not established liability for tips garnishment beyond October 31, 2011.

In light of the foregoing, I respectfully recommend that the District Judge find Defendants liable under the NYLL, but not the FLSA, to reimburse the tips that Mr. Fermín earned from January 27, 2008 through October 31, 2011. I recommend that the District Judge find that Defendants are not liable under the NYLL or the FLSA to reimburse tips to Mr. Fermín for the period beginning November 1, 2011 through March 24, 2013, when Mr. Fermín worked as a cook. Finally, I recommend that the District Judge find that Defendants are not entitled to a tip credit as the Court weighs Mr. Fermin’s minimum wage-and-overtime compensation claims under the FLSA and the NYLL.

2. Defendants Should Be Held Liable To Plaintiffs For Failing To Pay Them A Minimum Wage As Guaranteed By The FLSA And The NYLL

The federal minimum wage as set by the FLSA