Opinion
No. 2329 Index No. 152047/18 Case No. 2023-02569
05-21-2024
Anyely Rodriguez, et al., Respondents, v. Tri-Borough Certified Home Care, Ltd., et al., Appellants.
David S. Friedberg, New York, for appellants. Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondents.
David S. Friedberg, New York, for appellants.
Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondents.
Before: Manzanet-Daniels, J.P., Moulton, Mendez, Rosado, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered April 12, 2023, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for class certification, unanimously affirmed, with costs.
The court providently exercised its discretion in determining that plaintiff met the prerequisites for class action certification under CPLR 901 and 902 (see Pludeman v Northern Leasing Sys., Inc., 74 A.D.3d 420, 422 [1st Dept 2010]). Plaintiff's supporting affidavit was prepared in English and accordingly complied with CPLR 2101(b). Plaintiff stated that the affidavit had been translated into Spanish and she fully understood and agreed with every statement, and counsel represented that interpreters were available to ensure plaintiff's understanding of the litigation (cf. Ortiz v Food Mach. of Am., Inc., 125 A.D.3d 507, 508 [1st Dept 2015]). Although the initial affidavit was not properly notarized, a notarized, substantively identical affidavit was submitted alongside plaintiff's reply, which did not prejudice defendants (see Bank of Am., N.A. v Brannon, 156 A.D.3d 1, 6 [1st Dept 2017]).
Plaintiff established that she would fairly and adequately protect the interests of the class (see CPLR 901[a][4]). The record does not reveal any conflict of interest between plaintiff and the other class members (see Ackerman v Price Waterhouse, 252 A.D.2d 179, 202 [1st Dept 1998]), and plaintiff's affidavit establishes that she has the requisite "general awareness of the claims" involved in the case (see Brandon v Chefetz, 106 A.D.2d 162, 170 [1st Dept 1985]). Plaintiff seeks the same relief as the putative class members: to receive payment of the wages and benefits allegedly owed by defendants (see Nawrocki v Proto Constr. & Dev. Corp., 82 A.D.3d 534, 535 [1st Dept 2011]). Plaintiff's acknowledged lack of proficiency in English does not render her an inadequate class representative (see id.), nor do defendants' allegations of potential collateral impeachment issues (see Lamarca v Great Atl. & Pac. Tea Co., Inc., 55 A.D.3d 487, 488 [1st Dept 2008]).
Plaintiff also met the commonality and typicality prerequisites by alleging that defendants systematically failed to pay the requisite statutory minimum wages and supplemental benefits, based on plaintiff's supporting affidavit and the payroll and timekeeping records for plaintiff and other employees (see Andryeyeva v New York Health Care, Inc., 33 N.Y.3d 152, 184 [2019]; Stecko v RLI Ins. Co., 121 A.D.3d 542, 543 [1st Dept 2014]). "A class action is the superior vehicle for resolving this prevailing wage dispute" even though class members will have different damages based on the nature of their work history (see e.g. Chua v Trim-Line Hitech Constr. Corp., 225 A.D.3d 565 [1st Dept 2024]; Lavrenyuk v Life Care Servs., Inc., 198 A.D.3d 569, 570 [1st Dept 2021], lv dismissed 38 N.Y.3d 1021 [2022]).