LARRY NICHOLAS, Plaintiff, v. FRANKLIN FINEST DELI CORP d/b/a FRANKLIN FINEST DELI, FRANKLIN FINEST INC. II d/b/a FRANKLIN FINEST DELI, BEDFORD GOURMET DELI CORP, SAMER AHMED ABIAH, GHAMDAN AHMED OBAYAH, and CHERLY OBEYEH a/k/a CHERLY OBAYAH a/k/a CHARLIE OBAYAH a/k/a CHARLIE OBEYEH, Defendants.
Case 1:23-cv-07878-MKB-MMH
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
April 28, 2025
Document 31
MARGO K. BRODIE, United States District Judge
MARGO K. BRODIE, United States District Judge:
Plaintiff Larry Nicholas, commenced the above-captioned action on October 22, 2023, against Defendants Franklin Finest Deli Corp, and Franklin Finest Inc. II, both doing business as Franklin Finest Deli, and Bedford Gourmet Deli Corp (collectively, “Corporate Defendants“) and Defendants Samer Ahmed Abiah, Ghamdan Ahmed Obayah,1 and Cherly Obeyeh,2 alleging
violations of the Fair Labor Standards Act (the “FLSA“),
By report and recommendation dated March 18, 2025, Judge Henry recommended that the Court (1) grant Plaintiff‘s motion to amend the case caption to reflect Obayah‘s legal name and (2) grant in part and deny in part Plaintiff‘s motion for default judgment (the “R&R“). (R&R 2, 5, Docket Entry No. 25.) Judge Henry recommended that the Court grant Plaintiff‘s motion for default judgment against Corporate Defendants and award Plaintiff damages in the amount of $42,814.96, which includes, (i) $7,328.00 for unpaid minimum wage pay; (ii) $8,308.00 for unpaid overtime wages; (iii) $1,140.00 for unpaid spread of hours pay; (iv) $16,776.00 in liquidated damages; (v) $5,336.46 in pre-judgment interest to increase by $4.14 per day until the entry of judgment; (vi) attorneys’ fees of $2,980.00; (vii) costs of $946.50; (viii) post-judgment interest at the rate set forth in
I. Background
a. Report and recommendation
Judge Henry recommended that the Court (1) grant Plaintiff‘s motion to amend the case caption “to reflect [Obayah]‘s legal name ‘Jabbar Mazab a/k/a Shaiboob Ahmed Obayah a/k/a Charlie Obayah,‘” (2) grant in part and deny in part Plaintiff‘s motion for default judgment, and (3) deny all other requests for relief. (R&R 2, 5, 40-41.)
First, Judge Henry concluded that Plaintiff should be allowed to amend the caption of the Complaint because Plaintiff discovered Obayah‘s “correct legal name is ‘Jabar Mazab’ and later, following a name change, ‘Shaiboob Ahmed Obayah‘” after attempting to serve his motion for default judgment on Obayah and submitted court records reflecting Obayah‘s use of each name. (Id. at 6-7.) Second, Judge Henry concluded that while Plaintiff complied with the procedural requirements for a default judgment motion under Local Civil Rule 55.2 as to all Defendants, Plaintiff failed to comply with the Servicemembers Civil Relief Act (the “SCRA“) as to Obayah because he did not file an affidavit or “any information in the motion papers about . . . [Obayah]‘s military status.” (Id. at 12-14.) Judge Henry therefore recommended that the Court deny Plaintiff‘s motion for default judgment as to Obayah. (Id. at 14.) Judge Henry found that (1) Plaintiff can recover under the FLSA for claims beginning on October 22, 2020, and under the NYLL for all claims since the beginning of his employment, (id. at 15-16); (2) that Plaintiff and Corporate Defendants are subject to the FLSA, (id. at 15-19); (3) that Plaintiff qualifies for protections under the NYLL, (id. at 19-20); (4) that Corporate Defendants are jointly and severally liable under the FLSA and NYLL for any damages award in Plaintiff‘s favor, (id. at
II. Discussion
a. Standards of review
i. R&R
A district court reviewing a magistrate judge‘s recommended ruling “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
ii. Default judgment
Pursuant to
b. Unopposed portions of the R&R
No party has objected to Judge Henry‘s recommendations that the Court (1) grant Plaintiff‘s motion to amend the case caption as to Obayah, (2) grant Plaintiff‘s motion for default judgment as to Corporate Defendants, and (3) dismiss Plaintiff‘s wage notice and wage statement claims without prejudice for lack of standing.3 In addition, no party has objected to Judge Henry‘s recommendations that the Court award Plaintiff damages against Corporate Defendants in the amount of $42,814.96, including (i) $7,328.00 for unpaid minimum wage pay; (ii) $8,308.00 for unpaid overtime wages; (iii) $1,140.00 for unpaid spread of hours pay; (iv) $16,776.00 in liquidated damages; (v) $5,336.46 in pre-judgment interest to increase by $4.14 per day until the entry of judgment; (vi) attorneys’ fees of $2,980.00; (vii) costs of $946.50; (viii) post-judgment interest at the rate set forth in
percent of any unpaid amount of the judgment still pending after ninety days following the entry of judgment, per
The Court has reviewed these unopposed portions of the R&R and, finding no clear error, adopts Judge Henry‘s recommendations and (1) grants Plaintiff‘s motion to amend the case caption as to Obayah, (2) grants Plaintiff‘s motion for default judgment as to Corporate Defendants, (3) dismisses Plaintiff‘s wage notice and wage statement claims without prejudice, and (4) awards Plaintiff damages in the amount of $42,814.96, including (i) $7,328.00 for unpaid minimum wage pay; (ii) $8,308.00 for unpaid overtime wages; (iii) $1,140.00 for unpaid spread of hours pay; (iv) $16,776.00 in liquidated damages; (v) $5,336.46 in pre-judgment interest to increase by $4.14 per day until the entry of judgment; (vi) attorneys’ fees of $2,980.00; (vii) costs of $946.50; (viii) post-judgment interest at the rate set forth in Title 28, United States Code, Section 1961; and (ix) an increase of fifteen percent of any unpaid amount of the judgment still pending after ninety days following the entry of judgment, per
c. Plaintiff‘s objection to the R&R
Plaintiff requests that the Court adopt the R&R except as to Judge Henry‘s recommendation to deny the default judgment motion against Obayah for Plaintiff‘s failure to comply with the SCRA. (Pl.‘s Obj. 1.) First, Plaintiff argues that he has cured the procedural deficiency in his initial motion by submitting a supplemental declaration addressing Obayah‘s military service. (Id. at 1-3.) In support, Plaintiff submits a supplemental declaration that attaches six reports from Sam Yousefzadeh, Director of the Department of Defense‘s Manpower Data Center, “indicating that no one with [Obayah‘s] names (and with a date of birth of xx, xx, 1978). . . was on active duty” at the time Plaintiff moved for default judgment on May 24, 2024 or at the time Plaintiff filed his partial objection to the R&R on March 31, 2025. (Id. at 2-3
d. Plaintiff‘s default judgment motion
Because Judge Henry concluded that “Plaintiff fail[ed] to demonstrate compliance with the SCRA” and therefore limited discussion of Defendants’ liability to Corporate Defendants, (R&R 14), the Court first addresses whether Plaintiff has demonstrated compliance with the SCRA and then addresses whether Obayah is liable for violations of the FLSA and NYLL.
i. Compliance with the SCRA
Pursuant to the SCRA, the court must “require the plaintiff to file with the court an affidavit . . . stating whether or not the defendant is in military service and showing necessary facts to support the affidavit” prior to entering judgment.
Plaintiff has complied with the SCRA‘s requirements to provide a non-military affidavit before the Court enters judgment in his favor.
at 333 (“Adequate proof [of compliance with the statute] might consist of a report from the Department of Defense‘s website obtained after the defendant‘s default certifying that the defendant is not in active military service.” (citing ADI Glob., 2023 WL 3355049, at *3)); ADI Glob. Distrib., 2023 WL 3355049, at *3 (finding that the plaintiff complied with the SCRA by providing a declaration from counsel that the plaintiff searched the Department of Defense‘s website and obtained an SCRA report that reflected the defendant‘s inactive military status).
ii. Default judgment factors
In determining whether to grant a default judgment, the court looks to the same factors which apply to a motion to set aside a default judgment, namely: (1) “whether the defendant‘s default was willful“; (2) “whether [the] defendant has a meritorious defense to [the] plaintiff‘s claims“; and (3) “the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.” United States v. Myers, 236 F. Supp. 3d 702, 706 (E.D.N.Y. 2017); see Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 170-71 (2d Cir. 2001); Lopez v. Hero Rider USA, LLC, No. 22-CV-1428, 2023 WL 6226263, at *3 (E.D.N.Y. Sept. 26, 2023) (“Courts use the same three-factor test used to set aside a default judgment to determine whether to grant a default judgment.” (first citing Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993); and then citing Avail 1 LLC v. Latief, No. 17-CV-5841, 2020 WL 5633869, at *4 (E.D.N.Y. Aug. 14, 2020))). A default is considered willful where the defendant fails to answer a complaint without explanation or justification. See S.E.C. v. McNulty, 137 F.3d 732, 738-39 (2d Cir. 1998); Myers, 236 F. Supp. 3d at 707; see also Tambriz v. Taste & Sabor LLC, 577 F. Supp. 3d 314, 321 (S.D.N.Y. 2021) (“Defendants’ non-appearance and failure to respond to the [c]omplaint or otherwise appear indicate willful conduct.“), report and recommendation adopted, No. 20-CV-5409, 2022 WL 282918 (S.D.N.Y. Jan. 31, 2022); Indymac Bank v. Nat‘l Settlement Agency, Inc., No. 07-CV-6865, 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007)
First, Obayah was properly served with a summons, consent to magistrate judge jurisdiction form, and Complaint, which were left with a person of suitable age and discretion at Obayah‘s place of business at 1040 Carroll Street, and mailed to the same address. (Summons Returned Executed as to Obayah, Docket Entry No. 16.) Despite being properly served, Obayah failed to answer the Complaint, respond to Plaintiff‘s motion, or otherwise appear in the action. Accordingly, the Court finds Obayah‘s default to be willful. Tambriz, 577 F. Supp. 3d at 321 (finding that failure to respond to the complaint or otherwise appear demonstrates willful conduct for a default judgment motion); Sola Franchise Corp. v. Solo Salon Studios Inc., No. 14-CV-946, 2015 WL 1299259, at *6 (E.D.N.Y. Mar. 23, 2015) (“Defendant has not responded to [p]laintiffs’ motion for default judgment, has not appeared in this action, and has not communicated with the [c]ourt in any way. Accordingly, [d]efendant‘s failure to answer the [c]omplaint and to respond to the instant motion is sufficient to establish willfulness.“).
Second, the Court is not aware of any meritorious defenses Obayah would present in this matter. Tambriz, 577 F. Supp. 3d at 321 (finding that the court was “unable to determine that [d]efendants would be able to present any meritorious defense to [p]laintiffs’ claims because [d]efendants . . . failed to appear“); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 31 (E.D.N.Y. 2015) (“Defendants cannot establish a meritorious defense, because where a defendant has not ‘filed an answer, there is no evidence of any defense.‘” (citation omitted)).
Lastly, denying the motion for default judgment as to Obayah would be prejudicial to Plaintiff “as there are no additional steps available to secure relief in this [c]ourt.” Myers, 236 F. Supp. 3d
iii. Statute of limitations
Plaintiff alleges that the statute of limitations under the FLSA is three years because Obayah acted willfully. (Compl. ¶ 63.) In support, Plaintiff alleges that Obayah “willfully failed to pay Plaintiff at the minimum wage rate and willfully failed to pay Plaintiff overtime premium pay.” (Id.)
Under the FLSA, claims for non-willful violations must be filed within two years and willful violations must be filed within three years.
The NYLL has a six-year statute of limitations.
Plaintiff has sufficiently alleged that Obayah‘s FLSA violations were willful. Plaintiff alleges that Obayah paid him in cash, did not provide overtime pay, and did not provide him with wage statements, which omissions require the Court to find that Obayah acted willfully. (Compl. ¶¶ 59, 61-63.) See
Accordingly, Plaintiff‘s claims are timely against Obayah with respect to any FLSA violations that occurred on or after October 22, 2020, and any NYLL violations that accrued since the beginning of this employment in June of 2021, (Compl. ¶ 31), i.e., three years and six years, respectively, prior to Plaintiff filing his Complaint on October 22, 2023.
iv. Obayah is an eligible employer under the FLSA and NYLL
Plaintiff‘s allegations sufficiently establish that Obayah “was [the] owner and manager of Bedford Gourmet Deli Corp and Franklin Finest Deli during Plaintiff‘s tenure” at Franklin Finest Deli and 1040 Carroll Street Deli, which is owned and operated by Bedford Gourmet Deli Corp. (Compl. ¶¶ 2, 30.) In addition, Plaintiff alleges that his “conditions of employment . . . were controlled by [Obayah],” including his work schedule and how much he was paid. (Id. ¶¶ 31, 33.) Plaintiff also alleges that “[Obayah] had the authority to hire and fire employees of . . . Corporate Defendants” and that Obayah terminated Plaintiff‘s employment with Corporate Defendants. (Id. ¶¶ 32, 34.)
The FLSA creates liability for any “employer” who violates its terms. See, e.g.,
Because the “economic reality” of a relationship drives the analysis as to whether it constitutes an employer-employee relationship for the purposes of the FLSA, the determination must be made on a case-by-case basis in light of the totality of the circumstances and cannot rest on “technical concepts.” Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013); see also Sanchez Juarez v. Siderakis, No. 23-7972, 2024 WL 5135383, at *2 (2d Cir. Dec. 17, 2024) (“[E]mployment for FLSA purposes [is] a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances.” (alterations in original) (quoting Irizarry, 722 F.3d at 104)). In determining whether a defendant is an “employer,” as defined in the statute, the Second Circuit has identified four factors to consider, including, “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.” Irizarry, 722 F.3d at 104-05 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)); see also Ocampo v. Brown & Appel, LLC, No. 21-2579, 2022 WL 17684587, at *2 n.2 (2d Cir. Dec. 15, 2022) (quoting same). These factors do not, however, “comprise a ‘rigid rule for the identification of an FLSA employer,‘” but rather provide a guideline “to ensure that the economic realities test
Plaintiff has established that Obayah meets three of the four factors relevant to determining whether Obayah “possessed the power to control the workers in question,” Herman, 172 F.3d at 139, and has therefore established that Obayah is an “employer” under the FLSA and the NYLL.5 First, Plaintiff submitted a declaration stating that “[Obayah] had the authority to hire and fire employees” of Corporate Defendants’ delis, (Decl. of Larry Nicholas (“Nicholas Decl.“) ¶ 15, annexed to Pl.‘s Mot., Docket Entry No. 23-3), which establishes the first factor – whether the alleged employer had the power to hire and fire employees, see Rodriguez v. Lucky Lotto Grocery Deli Corp., No. 22-CV-2256, 2024 WL 3760583, at *9 (E.D.N.Y. July 18, 2024) (finding that the individual defendants qualified as employers under the FLSA where the plaintiff alleged, inter alia, that they “managed the day-to-day operations and further had the power to hire and fire employees” (alterations and internal quotation marks omitted)), report and recommendation adopted, 2024 WL 3759660 (E.D.N.Y. Aug. 12, 2024).
Second, Plaintiff alleges in the Complaint that Obayah controlled his “conditions of employment.” (Compl. ¶ 31.) Plaintiff also states in his declarations that Obayah “determined [his] schedule. . .” (Nicholas Decl. ¶ 16.) These allegations are sufficient to establish the second factor – whether the alleged employer controlled employee work schedules or conditions of employment. See Cooper v. Fire & Ice Trucking, Corp., No. 23-CV-1675, 2024 WL 3344001, at *7 (E.D.N.Y. July 9, 2024) (finding that “all four factors support a finding that as a matter of economic reality, the plaintiff had an employer-employee relationship with each defendant” where the plaintiff alleged, inter alia, that “the . . . business‘s owner and manager[] set [the plaintiff‘s] work schedule and that each of the [d]efendants controlled the conditions of [the plaintiff‘s] employment“).
Third, Plaintiff alleges in the Complaint that “[Obayah] determined how much Defendants paid Plaintiff.” (Compl. ¶ 33.) Plaintiff also states in his declaration that “[Obayah] determined how much [he] was paid” and paid him in cash for his work at 1040 Carroll Street Deli and at Franklin Finest Deli. (Nicholas Decl. ¶¶ 16-19.) These allegations are sufficient to establish the third factor – whether the alleged employer determined the rate and method of payment. See Davis v. Navada‘s Bar & Lounge, LLC, No. 22-CV-4176, 2024 WL 1531092, at *6 (E.D.N.Y. Mar. 1, 2024) (finding that an individual defendant qualified as an employer under the FLSA where the plaintiff alleged, inter alia, that he “controlled employee policies, including decisions regarding payroll, payment policy, and compensation practices“), report and recommendation adopted, No. 22-CV-4176 (Mar. 29, 2024).
Although Plaintiff does not allege the fourth factor – whether Obayah maintained employment records – Plaintiff‘s allegations are sufficient to establish that Obayah is also an “employer” covered by the FLSA and NYLL. See Jacome v. Optical 49, Inc., No. 20-CV-2615, 2021 WL 3375134, at *6 (E.D.N.Y. July 9, 2021) (finding that allegations that the individual defendant “owned, operated, and controlled” the corporate defendant and “hired and fired [p]laintiff, set his working conditions, and determined how and how much [he] was paid” were sufficient to “establish that [the individual and corporate defendants] were joint employers“), report and recommendation adopted, 2021 WL 3373130 (E.D.N.Y. Aug. 3, 2021).
v. Joint and several liability
Plaintiff alleges that Obayah “was [the] owner and manager of Bedford Gourmet Deli Corp and Franklin Finest Deli during Plaintiff‘s tenure at 1040 Carroll Street [Deli] and Franklin Finest Deli.” (Compl. ¶ 30.) In addition, Plaintiff alleges that “1040 Carroll Street [Deli] and Franklin Finest Deli were under the same ownership” such that “all the Corporate Defendants were Plaintiff‘s joint-employer and/or were a single integrated enterprise during Plaintiff‘s tenure with Defendants” from June of 2021 through on or about December 6, 2021. (Id. ¶ 31.) Plaintiff seeks “judgment jointly and severally against each of” Corporate Defendants and Obayah. (Proposed Default J., annexed to Pl.‘s Mot. as Ex. O, Docket Entry No. 23-2.)
“A claim alleging ‘joint and several liability’ is one where any defendant can be liable to the plaintiff in two ways: (1) regardless of whether any other defendant is liable (‘several’ or individual liability) or (2) where the defendant acted in concert with each and every defendant (‘joint’ liability).” Winwear Ltd. v. N. S. U.S. Inc., No. 22-CV-5418, 2022 WL 18859026, at *2 n.2 (E.D.N.Y. Dec. 13, 2022); Umala v. Skylight Holdings, No. 20-CV-1176, 2021 WL 7908033, at *2 (E.D.N.Y. Feb. 3, 2021) (same); Lemache v. Tunnel Taxi Mgmt., LLC, 354 F. Supp. 3d 149, 153 (E.D.N.Y. 2019) (same). An individual defendant may be jointly and severally liable under the FLSA and NYLL when they are plaintiff‘s employer. Erdemir v. Allstate Marble & Granite, Kitchens & Baths Inc., 704 F. Supp. 3d 337, 369 (E.D.N.Y. 2023) (“A corporate officer with
As discussed above in section II.d.iv, Obayah functioned as one of Plaintiff‘s employers under the FLSA and NYLL. Plaintiff alleges that Obayah owned and operated Bedford Gourmet Deli Corp and Franklin Finest Deli during Plaintiff‘s employment with him and Corporate Defendants. (Compl. ¶¶ 30-31.) Thus, Plaintiff‘s allegations are sufficient to establish that Obayah is jointly and severally liable with Corporate Defendants for any FLSA and NYLL damages award to Plaintiff. Erdemir, 704 F. Supp. 3d at 369 (finding that the individual defendants were jointly and severally liable under the FLSA and NYLL where the evidence showed they “were owners of [the corporate defendant], each had substantial control over its day-to-day operations, and each exercised control over the employment relationship between [the corporate defendant] and [p]laintiff“); Fermin, 93 F. Supp. 3d at 37 (finding a corporate defendant and individual defendants jointly and severally liable under the FLSA and NYLL because the defendants were plaintiffs’ employers); Pineda v. Masonry Const., Inc., 831 F. Supp. 2d 666, 685-86 (S.D.N.Y. 2011) (finding allegations that the individual defendant “was an
III. Conclusion
For the foregoing reasons, the Court grants Plaintiff‘s motion to amend the case caption and grants in part and denies in part Plaintiff‘s motion for default judgment. The Court grants Plaintiff‘s motion to amend the case caption to identify Defendant “Cherly Obeyeh” as “Jabbar Mazab a/k/a Shaiboob Ahmed Obayah a/k/a Charlie Obayah” in the case caption. The Court grants Plaintiff‘s motion for default judgment against all Defendants and awards Plaintiff damages in the amount of $42,814.96, which includes, (i) $7,328.00 for unpaid minimum wage pay; (ii) $8,308.00 for unpaid overtime wages; (iii) $1,140.00 for unpaid spread of hours pay; (iv) $16,776.00 in liquidated damages; (v) $5,336.46 in pre-judgment interest to increase by $4.14 per day until the entry of judgment; (vi) attorneys’ fees of $2,980.00; (vii) costs of $946.50; (viii) post-judgment interest at the rate set forth in
Dated: April 28, 2025
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge