Opinion
Index No. 158949/2017
07-15-2022
MAKTUMMA TESHABAEVA, AND JIAN HUA DENG INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY FAMILY HOME CARE SERVICES OF BROOKLYN AND QUEENS, INC., Plaintiffs, v. FAMILY HOME CARE SERVICES OF BROOKLYN AND QUEENS, INC., CARE AT HOME - DIOCESE OF BROOKLYN, INC., Defendant.
Unpublished Opinion
PRESENT: HON. ALEXANDER TISCH Justice.
DECISION + ORDER ON MOTION
ALEXANDER TISCH, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 196, 198, 200, 203, 204, 205, 206 were read on this motion to/for MISCELLANEOUS.
Upon the foregoing documents, plaintiffs move for class certification pursuant to New York Civil Practice Laws and Rules (CPLR) article 9 and related relief.
Named plaintiffs commenced the instant action to recover unpaid minimum wages, overtime compensation, spread of hours compensation, and unpaid prevailing wages and benefits under the New York Labor Law and related administrative codes. The complaint also alleges that defendants failed to maintain adequate records of the hours plaintiffs actually worked, the breaks plaintiffs were entitled to receive, and the sleeping facilities provided to plaintiffs. The putative class is comprised of home health aides (HHAs) and/or personal care assistants that were formerly employed by the defendant prior to December 22, 2015. CPLR 901 (a)
CPLR 901 (a) provides that a class action may be maintained where:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Plaintiffs bear the burden of establishing that the criteria in CPLR 901 (a) have been met (Kudinov v Kel-Tech Constr. Inc., 65 A.D.3d 481 [ 1 st Dept 2009]). "Whether a particular lawsuit qualifies as a class action rests within the sound discretion of the trial court. In exercising this discretion, a court must be mindful of our holding that the class certification statute should be liberally construed" (Kudinov, 65 A.D.3d at 481, citing Englade v HarperCollins Pubis., Inc., 289 A.D.2d 159 [1st Dept 2001]).
Initially, the Court notes that its inquiry as to whether the claims have merit is a very limited inquiry; rather, the minimal demonstration to proceed as a class is a showing that "there appears to be a cause of action which is not a sham" (Pludeman v N. Leasing Sys., Inc., 74 A.D.3d 420, 422 [1st Dept 2010]). Thus, the Court disregards any arguments in opposition that tends to raise issues of fact on the merits of the claims, as the inquiry sub judice "is not intended to be a substitute for summary judgment or trial" (id.).
Additionally, the Court rejects defendant's arguments as if federal caselaw should be controlling or pursuasive with respect to home health aides in general (as all the cases cited were pre-Andreyeyeva, discussed infra) and/or as to class certification in general, as this Court is "not required to apply the 'rigorous analysis' standard utilized by the federal courts in addressing class certification motions under rule 23 (b) of the Federal Rules of Civil Procedure" (Stecko v RLI Ins. Co., 121 A.D.3d 542, 543-544 [1st Dept 2014]).
The Court finds that plaintiffs evidence in support of the motion clearly demonstrate that all requirements of CPLR 901 (a) are met.
In opposition, defendant argues that the motion should be denied because, inter alia, the plaintiffs' submissions fall short of the evidentiary showing required to meet class certification, citing Moreno v Future Health Care Services, Inc. (186 A.D.3d 594, 594-97 [2d Dept 2020]). This case is distinguishable from Moreno in that the plaintiffs clearly alleged and submitted evidence that they did not receive the prescribed sleep and meal breaks (see, e.g., Lavrenyuk v Life Care Services, Inc., 198 A.D.3d 569, 570 [1st Dept 2021], Iv to appeal dismissed 38 N.Y.3d 1021 [2022] ["plaintiff submitted evidence that she worked with at least 40 other home health aides, and also submitted her paystubs and those of other employees" meeting class certification prerequisites on similar claims related to HHAs]).
Further, if there were any deficiency in evidence, it cannot serve to benefit defendant, whose answer was stricken for failing to provide pre-class certification discovery (see NYSCEF Doc Nos 202, 128).
Defendant did not submit any evidence in opposition. The only paper submitted was a memorandum of law. Accordingly, any reference in the memorandum of law to defendant's putative "policies and practices" (NYSCEF Doc No 200 at 6) and/or an "Isakov" affidavit (id. at 10) is ignored.
Additionally, the evidence submitted by plaintiffs show that the named plaintiffs and other former health aides were not given the requisite meal and sleep breaks and may not have been compensated appropriately for 24-hour shifts, and that defendant failed to maintain adequate records related to the same. This evidence supports the contention that the claims relate to "uniform systemwide violations" which are "particularly appropriate for class certification" (Andryeyeva v New York Health Care, Inc., 33 N.Y.3d 152, 184 [2019]).
Defendants also argue that class certification should not be granted because the claims involve an individualized assessment and/or proof as to liability. The Court cannot see how the arguments relate to liability as opposed to an individualized assessment of damages - which is not a bar to class certification (see id. at 185; see, e.g., Lavrenyuk, 198 A.D.3d at 570). Indeed, as the Appellate Division, First Department recently held "any factual issues relating to whether individual employees took breaks is related to damages, and individualized damages assessments in wage-and-hour actions based on systematic policies do not undermine commonality or weigh substantially against class certification" (Brown v Mahdessian, ___ A.D.3d ___, 2022 NY Slip Op 03985, 168 N.Y.S.3d 684 [1st Dept 2022]).
The Court has considered the defendant's remaining arguments and finds them unavailing.
CPLR 902Once the criteria of CPLR 901 (a) are met, "the court, in deciding whether to grant class action certification should then consider the additional factors promulgated by CPLR 902" (Pludeman, 14 A.D.3d at 422; see Vincent C. Alexander, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C902:2 [noting that application of these additional factors tends to be "largely a matter of judicial discretion"]). These factors include:
1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
2. The impracticability or inefficiency of prosecuting or defending separate actions;
3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum;
5. The difficulties likely to be encountered in the management of a class action (CPLR 902).
The Court finds that the subdivisions (1), (2), (4) and (5) "may, under the circumstances of this case, be subsumed under the prerequisite of superiority" set forth in CPLR 901 (a) (5) (Globe Surgical Supply v GEICO Ins. Co., 59 A.D.3d 129, 136 [2d Dept 2008]; see Smith v The Donna Karan Co. Store, LLC, Sup Ct, NY County, Jan. 18, 2017, Bannon, J., index No. 157912/2013, 2013 WL 395249, at *2). Additionally, as to subdivision (4) of CPLR 902, New York County Supreme Court is an appropriate forum given the nature of the claims and allegations, some of the parties' residency in the county, and the absence of any forum selection clause (see Globe Surgical Supply, 59 A.D.3d at 136).
Accordingly, it is hereby ORDERED that the plaintiffs' motion to certify this action as a class action, appoint Virginia & Ambinder LLP as class counsel, and approve the class notice and proposed publication order is granted; and it is further
ORDERED that plaintiffs' counsel shall submit the proposed publication order separately by email to SFC-Part18-Clerk@,nycourts.gov for signature, so as to not write over any previously filed NYSCEF-filing notation as seen on NYSCEF Doc No 191.
This constitutes the decision and order of the Court.