Torres v. Golden Home Furniture Inc

USDC SDNY DOCUMENT SOUTHERN DISTRICT OF NEW YORK SERGIO TORRES, individually and on behalf of DATE FILED: 8/10/2021 _ others similarly situated, Plaintiff, -against- 1:20-cv-04789-MKV GOLDEN HOME FURNITURE INC. d/b/a Golden ORDER Home Furniture; 7 STAR HOME FURNITURE INC. d/b/a 7 Star Furnitures MOHAMMAD ALDAOU; FRANK DOE; and DAVID ALDAOU a/k/a Akman, Defendants.

MARY KAY VYSKOCIL, United States District Judge: On August 10, 2021, the Court held a telephonic hearing on Plaintiff's motion for default judgment. Counsel Michael Antonio Faillace appeared on behalf of Plaintiff. Defendants did not appear. In accordance with matters discussed at the conference, Plaintiffs motion for default judgment is DENIED WITHOUT PREJUDICE.

Plaintiff has failed to allege adequately that the individual Defendants were his employers under the Fair Labor Standards Act and the New York Labor Law. The allegations in the Complaint are copied verbatim from those asserted in Fallon v. 18 Greenwich Avenue, LLC, 1:19- cv-9579-MKV, 2021 WL 1105066 (S.D.N.Y. Mar. 23, 2021), and fail to establish employer liability for the reasons explained in that Opinion and Order. Similarly, Plaintiffs allegations in the Complaint with respect to the corporate Defendants are too general and conclusory to establish liability by default.

Furthermore, Plaintiffs default judgment application consists solely of an affidavit of Mr. Faillace, Plaintiff's counsel, who does not have personal knowledge of the assertions he makes.

Plaintiff presents no evidentiary support from any competent witness with personal knowledge of relevant facts and circumstances. There is no affidavit from Plaintiff himself.

In short, Plaintiff has failed to present a sufficient record for the Court to conclude that default judgment is appropriate. See Shah v. N.Y. State Dep’t of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999) (“The dispositions of motions for entries of defaults and default judgments .. . are left to the sound discretion of a district court because it is in the best position to assess the individual circumstances of a given case and to evaluate the credibility and good faith of the parties.” (quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993))).

Accordingly, Plaintiff’s default judgment motion is DENIED WITHOUT PREJUDICE.

The Clerk of Court is respectfully requested to close docket entry 41.

SO ORDERED. ret ey Veber!

Date: August 10, 2021 MARY/KAY KOCIL New York, NY United States District Judge