Americare class cert brief FINAL
Transcript of Americare class cert brief FINAL
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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RAISA MELAMED and GALYNA MALYARUK,
individually and on behalf of all others similarly
situated,
Plaintiffs, Index No. 506155/2016
-against- Hon. Ingrid Joseph
AMERICARE CERTIFIED SPECIAL SERVICES, INC.,
And AMERICARE, INC.,
Defendants.
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PLAINTIFFS’ MEMORANDUM OF LAW
IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION
By: Jason J. Rozger
Raya F. Saksouk
MENKEN SIMPSON & ROZGER LLP
80 Pine St., 33rd Fl.
New York, NY 10005
T: 212-509-1616
F: 212-509-8088
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .....................................................................................................1 PROCEDURAL HISTORY.............................................................................................................2 STATEMENT OF FACTS ..............................................................................................................4 ARGUMENT ...................................................................................................................................8
I. C.P.L.R. Article 9 .............................................................................................................8
A. C.P.L.R. Article 9 is liberally construed in favor of class certification. ............8
II. The Putative Class Satisfies the Liberally Construed Criteria of C.P.L.R. §§ 901 and 902 ..........................................................................................9
A. C.P.L.R. § 901....................................................................................................9
1. Numerosity ...................................................................................................9
2. Commonality................................................................................................9
3. Predominance .............................................................................................12
a. Plaintiffs satisfy the predominance requirement............................12
b. Individualized damages do not preclude a finding of
predominance. ...............................................................................13
c. Although not necessary for class certification, Plaintiffs have several methods to prove classwide damages at their disposal. .....14
d. Moreno v. Future Health Care is no barrier to certification. .........18
4. Typicality ...................................................................................................18
5. Adequacy of Representation ......................................................................19
6. Superiority..................................................................................................21
B. C.P.L.R. § 902..................................................................................................22
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1. Interest in Individual Control .....................................................................22
2. The Impracticality or Inefficiency of Prosecuting Separate Actions .........23
3. The Existence of Other Litigation Regarding the Same Controversy .......23
4. The Desirability of the Proposed Class Forum ..........................................23
5. The Difficulties Likely to Be Encountered by Class Action Management .........................................................................24
CONCLUSION ..............................................................................................................................24
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TABLE OF AUTHORITIES
STATE CASES
Andryeyeva v. New York Health Care, Inc., 33 N.Y.3d 152 (2019) ................................1, 8, 11, 16 Andryeyeva v. New York Health Care Inc., No. 14309/2011, 2020 WL 2510472 (Sup. Ct. Kings Cty. May 15, 2020) ...................................................................................1, 13, 21 Badzio, et al., v. Americare, et al., No. 506155/16 ...................................................................... 2-4 Bernarez v. Alternate Staffing, Inc., No. 150826/17, 2020 WL 5590256, (Sup. Ct. New York Cty. Sep. 17, 2020) ................................ 1, 11-13, 20, 22 Borden v. 400 E. 55th St. Assocs., L.P., 24 N.Y.3d 382 (2014) ...................................................13 Branch v. Crabtree, 197 A.D.2d 557, N.Y.S.2d 490 (2d Dept. 1993) ...................................12, 18 Cardona v. Maramount Corp., No. 602877-2007, 2014 WL 2558176 (Sup. Ct. N.Y. Cty. June 6, 2014) .................................................................................................14 Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 434 N.Y.S.2d 698 (2d Dept. 1980) ............................................................................................................. 8-10, 12, 19 Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 93 Misc.2d 941, 404 N.Y.S.2d 258 (Sup. Ct. N.Y. County 1978) ..........................................................................18 Heenam Bae v. Indus. Bd. of Appeals, 104 A.D.3d 571, 963 N.Y.S.2d 2 (1st Dept. 2013) .........14 Jara v. Strong Steel Door, No. 14643/05, 2008 WL 3823769 (Sup. Ct. Kings Cty. Aug. 15, 2008) .........................................................................................9, 23 Krebs v. Canyon Club, Inc., No. 10431/08, 2009 WL 440903 (N.Y. Sup. Ct. Jan. 2, 2009) .......23 Kurovskaya v. Project O.H.R. No. 150480/2016, 2020 WL 7046644 (Sup. Ct. N.Y. Cty. Dec. 01, 2020) ......................................................................... 2, 11-12, 19, 22 Melamed, et al. v. Americare, et al., No. 503171/12 ................................................................... 2-4 Moreira v. Sherwood Landscaping Inc., No. CV 13-2640 (A KT), 2015 WL 1527731 (E.D.N.Y. Mar. 31, 2015) .............................................................................................................12 Moreno v. Future Health Care, 186 A.D.3d 594 (2d Dept. 2020) ...............................................18 Nawrocki v. Proto Const. & Dev. Corp., 82 A.D.3d 534, 919 N.Y.S.2d 11 (1st Dept. 2011) .....22
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Pruitt v. Rockefeller Center Properties, Inc., 167 A.D.2d 14 (1st Dept 1991) ............................20 Rosenfeld v. Robins Co., 63 A.D.2d 11, 407 N.Y.S.2d 196 (1978) ..........................................8, 17 Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543-44, 995 N.Y.S.2d 13 (2014) ....................................8 Troshin v. Stella Orton Home Care Agency, Inc., 70 Misc. 3d 1223(A), 2021 WL 956245 (Sup. Ct. New York Cty. 2021) ....................................................... 2, 11-13, 19 Weinberg v. Hertz Corp., 116 A.D. 1 (1st Dept. 1986) ................................................................12 Williams v. Air Serv Corp., 121 A.D.3d 441, 994 N.Y.S.2d 571 (2014) ......................................20 Zuparov v. Bestcare Inc., No. 506914/15, 2021 WL 256625 (Sup. Ct. Kings Cty. Jan. 22, 2021) .............................................................1, 12 Zeitlin v. New York Islanders Hockey Club, 11 N.Y.S.3d 473 (Sup.Ct. Nassau Cty. 2015) ..........9
FEDERAL CASES
Anderson v. Mt. Clemens, 328 U.S. 680 (1946) ................................................................ 11, 14-15
Canales et al. v. 115 Broadway Corp. et al., No. 08 Civ. 4674, 2009 WL 3029333 (S.D.N.Y. June 5, 2011) ................................................................................................................21
Chambery v. Tuxedo Junction Inc., No. 12-CV-06539 EAW, 2014 WL 3725157 (W.D.N.Y. July 25, 2014) ...............................................................................................................9 Hardgers-Powell v. Angels In Your Home, 330 F.R.D. 89 (W.D.N.Y. 2019) ..............................15 Herman v. Palo Group Foster Home, Inc., 183 F.3d 468 (6th Cir. 1999) ...................................15 Indergit v. Rite Aid Corp., 52 F. Supp. 3d 522 (S.D.N.Y. 2014) ..................................................16 Jackson v. Bloomberg, L.P., 298 F.R.D. 152 (S.D.N.Y. 2014) ....................................................16 Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005) ........................................21 Mitchell v. County of Clinton, No. 06 Civ. 254, 2007 WL 1988716 (N.D.N.Y. July 5, 2007) ....21 Perez v. Isabella, No. 13-CV-7453(RA), 2016 WL 5719802 (S.D.N.Y. Sept. 30, 2016) ......11, 15 Ramos v. SimplexGrinnell L.P., 796 F.Supp.2d 346 (E.D.N.Y. 2011) .........................................21 Reich v. Southern New England Telecomms. Corp., 121 F.3d 58 (2d Cir. 1997) ........................16
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Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442 (S.D.N.Y. 2015) ..........................................15 Saunders v. Getchell Agency, Inc., No. 1:13-cv-00244-JDL, 2015 WL 1292594 (D. Maine March 23, 2015) .................................................................................................... 15-16 Sipas v. Sammy’s Fishbox, Inc., No. 05 Civ. 10319, 2006 WL 1084556 (S.D.N.Y. April 24, 2006) .............................................................................................................21
STATE STATUTES C.P.L.R. § 901.......................................................................................... 2-3, 8-9, 12-13, 18-21, 24 C.P.L.R. § 902................................................................................................ 2, 8, 11, 13, 20, 22-24 N.Y.L.L. § 195 ...............................................................................................................................14 12 N.Y.C.R.R. 142-2.6 ............................................................................................................10, 14
FEDERAL STATUTES
28 U.S.C. § 1332 .............................................................................................................................2
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PRELIMINARY STATEMENT
The Plaintiffs and proposed class members in this case are home health aides (“HHA’s”)
who work 24-hour live-in shifts caring for the elderly and infirm who cannot care for themselves.
The work is grueling, characterized by long, sleepless nights and demanding physical labor.
Plaintiffs’ and class members’ patients require so much care, day and night, that meal and sleep
breaks are often impossible, meaning they work around the clock for three, four, and sometimes
five 24-hour shifts in a row with little time to sleep or eat.
In return, Plaintiffs and the class are paid a flat rate per shift that is less than the
minimum wage for 24 hours. The New York Labor Law requires HHA’s be paid for all 24 hours
of a shift if they are not afforded adequate sleep and meal time. Defendants’ policy of
underpaying wages, not affording HHA’s the required sleep and meal time, and its failure to
keep track of HHA’s sleep and meal time renders this action eminently suitable for class
certification.
Since the Court of Appeals’ decision in Andryeyeva v. New York Health Care, Inc., 33
N.Y.3d 152 (2019), which held that HHA’s may be paid for 13 hours of a 24-hour shift if they
are afforded 8 hours of sleep, 5 uninterrupted, and 3 uninterrupted hours for meals1, Supreme
Court has certified five class actions of HHA’s claiming, as here, that they were not afforded the
required sleep and meal time during 24-hour shifts. See Andryeyeva v. New York Health Care
Inc., No. 14309/2011, 2020 WL 2510472, (Sup. Ct. Kings Cty. May 15, 2020); Zuparov v.
Bestcare Inc., No. 506914/15, 2021 WL 256625, (Sup. Ct. Kings Cty. Jan. 22, 2021); Bernarez
1 The Court also held that “failure to provide a home health care aide with the minimum sleep and meal times required under DOL's interpretation of the Wage Order is a ‘hair trigger’ that immediately makes the employer liable for paying every hour of the 24-hour shift, not just the actual hours worked.” Id., at 182.
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v. Alternate Staffing, Inc., No. 150826/17, 2020 WL 5590256, (Sup. Ct. New York Cty. Sep. 17,
2020); Troshin v. Stella Orton Home Care Agency, Inc., 70 Misc. 3d 1223(A), 2021 WL 956245
(Sup. Ct. New York Cty. 2021); Kurovskaya v. Project O.H.R. No. 150480/2016, 2020 WL
7046644 (Sup. Ct. N.Y. Cty. Dec. 01, 2020). Accordingly, Plaintiffs respectfully request the
Court certify a class pursuant to CPLR §§ 901 and 902 of all HHA’s employed by Defendants
who worked any 24-hour shifts between September 27, 2005 and the present.
PROCEDURAL HISTORY
This case has a long and complex history. Two actions—Melamed, et al. v. Americare, et
al., No. 503171/12, and Badzio, et al., v. Americare, et al., No. 506155/16—were consolidated
into one case on December 5, 2019. Plaintiffs originally filed Melamed in Federal court, case no.
11-cv-4699 (Exhibit 12; see also NYSCEF No. 131), alleging the systemic underpayment of
minimum, overtime, and spread-of-hour wages under the New York Labor Law (“NYLL”) for
work performed by HHA’s during 24-hour shifts. Federal jurisdiction was alleged pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”). After limited discovery on the issue
of Federal jurisdiction, Defendants moved to dismiss the Federal action on August 10, 2012,
based on the local controversy exception to CAFA jurisdiction, 28 U.S.C. 1332(d)(4)(B). The
motion was granted without prejudice to Plaintiffs’ right to refile in State Court on August 15,
2012.
Plaintiffs re-filed the Melamed case in Supreme Court on October 4, 2012, and amended
their Complaint on January 29, 2013 (Exhibit 2; NYSCEF No. 3). On July 3, 2013, Defendants
moved to dismiss. Plaintiffs opposed and cross-moved for class certification. On December 16,
2014, this Court denied Defendants’ motion to dismiss, and denied without prejudice Plaintiffs’
2 All exhibits are to the Affirmation of Jason J. Rozger.
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cross motion. Though the Court found that Plaintiffs’ motion met CPLR § 901’s requirements of
numerosity, typicality, commonality, predominance, and superiority, it found that the record did
not support a finding of adequacy of representation, and that the motion could be renewed
following class discovery.
Thereafter, the parties exchanged disclosure. On September 17, 2016, Defendants moved
to dismiss the class allegations in the complaint. Plaintiffs opposed and filed a cross motion to
compel the production of class payroll records, pursuant to the Court’s December 16, 2014
decision. On January 20, 2016, the Court granted Defendants’ motion to dismiss and denied
Plaintiffs’ cross motion to compel. Plaintiffs appealed that order. While the appeal was pending,
Plaintiffs’ counsel filed Badzio v. Americare, et. al., Index No. 506155/2016 on April 18, 2016,
alleging similar facts and claims as Melamed. (Exhibit 3; NYSCEF No. 1). On April 14, 2017,
Defendants moved for a stay of Melamed pending the outcome of the appeals in the Andryeyeva
case or, alternatively, for a protective order. On June 22, 2017, the Court stayed discovery of
classwide pay records for 30 days and otherwise denied Defendants’ motion. In addition,
Defendants’ motion to pre-emptively deny the Badzio plaintiffs and class members the benefit of
the tolling of the statute of limitations until September 27, 2005, six years prior to the filing of
the Melamed federal complaint, was denied on June 19, 2017 (doc. no. 46).
On January 16, 2019, the Second Department reversed and remanded the January 20,
2016 Order in Melamed, holding, inter alia, that the court “should have granted the plaintiffs’
cross motion pursuant to CPLR 3124 to compel the production of the requested payroll data.”
On February 6, 2019, Defendants moved to stay Melamed case pending the outcome of
Andryeyeva, or, in the alternative, for a protective order against their Appellate Division-ordered
production of the classwide payroll data. Plaintiffs opposed this motion and filed a cross-motion
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to consolidate Melamed and Badzio. On December 5, 2019, the Court consolidated Melamed
and Badzio. (NYSCEF No. 160). Meanwhile, Plaintiffs moved on June 10, 2020 to compel
production of the Appellate Division-ordered class payroll data, and Defendants cross-moved to
limit that disclosure to a sampling. On November 20, 2020, the Court ordered production of the
full payroll data. (NYSCEF No. 193).
On February 10, 2021, Defendants produced 33 Excel spreadsheets of payroll data
covering the years 2005 through 2020. Depositions noticed by the Plaintiffs pursuant to Rule 11
of the Commercial Part rules were taken on April 5 and 7, 2021. Defendants’ responses to
Plaintiffs’ second set of discovery requests and issues related to incomplete Rule 11 deposition
testimony remain outstanding.
STATEMENT OF FACTS
Plaintiff HHA’s Raisa Melamed, Galyna Malyaruk, Tamara Badzio, and Larysa Salo
allege that Defendants Americare Certified Special Services, Inc., and Americare, Inc.
(collectively, “Defendants” or “Americare”), their former employers, failed to pay them
statutorily required minimum, overtime, and “spread of hour” wages in violation of the NYLL
because Defendants pay home health aides a flat rate for each 24-hour shift, which is less than
the minimum wage for 24 hours of work.
Defendants are two for-profit corporations that are jointly managed by corporate entity
Care Management, Inc. (“Care Management”) (Patsakos 54:12-21 [2012]) (Exhibit 4),3 all of
which are owned by Martin Kleinman (Falotico 12:05-21 [2021]) (Exhibit 5). Americare CSS is
a certified agency that can bill Medicaid and Medicare; Americare, Inc. is a licensed agency that
cannot so bill. (Falotico 11:17-24 [2012]) (Exhibit 6). As such, Americare CSS contracts with
3 Two witnesses were deposed in 2012 and again in 2021.
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Americare, Inc. to provide HHA services to Americare CSS’s clients, and bills Medicaid,
Medicare, or private insurance for HHA services provided through Americare, Inc. (Hahn
101:13-19 [Ex. 7]); (Ex. 6, 11:17-12:15).
Plaintiffs were employed by Americare as HHA’s. (Badzio 9:02-04, 16:03-04 [Ex. 8];
Malyaruk 6:03-05 [Ex. 9]; Melamed 7:14-16 [Ex. 10]; Salo 7:02-04 [Ex. 11]). During their
employment, they cared for vulnerable patients suffering from Alzheimer’s, paralysis, bladder
problems, and other serious ailments that prevented them from caring for themselves. (Ex. 8,
38:22; Ex. 10, 22:09-11; Ex. 11, 35:19, 36:04; Ex. 9, 14:10-11; Gallagher 43:03-06 [Ex. 12]).
Plaintiffs’ job duties included assistance with walking, bathing, dressing, personal grooming,
meal preparation, feeding, toileting, changing diapers, medication monitoring, heavy and light
cleaning, doing laundry and taking out garbage; shopping; running errands; and escorting clients
to and from medical appointments. (Ex. 11, 14:3-25, 17:09-21, 38:06-08; Ex. 10, 25:09-26:02,
34:10-11, 37:11-12, 54:02-07; Ex. 9, 14:05-11, 15:24-16:04; Ex. 8, 19:14-20:18, 54:25-56:10;
see also Ex. 7, 115:23-13; Ex. 6, 26:2-12; Ex. 13, p. 10-13).
Like other HHA employees of Defendants, Plaintiffs regularly worked more than 40
hours per week at the homes of Defendants’ clients, and they often worked 24-hour shifts, which
usually lasted from 8:00 a.m. one day to 8:00 a.m. the following day. (Ex. 11, 36:05-37:08; Ex.
10, 22:33-23:17; Ex. 9, 10:9-11, 19:23-24; Ex. 8, 15:18-23, 26:06-27:16, 52:06-09). Plaintiffs
often worked three 24-hour shifts per week, and sometimes worked as many as four or five 24-
hour shifts in a row. (Ex. 8, 27:14-16; Ex. 11, 37:03-08; Ex. 10, 23:04-06; Ex. 9, 19:17-20; Ex.
12, 40:21-41:04). Although Plaintiffs maintained permanent residences elsewhere, they were
required to stay overnight at the residences of Defendants’ clients during their 24-hour shifts.
(Ex. 7, 100:20-101:12; Ex. 6, 38:12-25; Ex. 12, 34:18-35:13).
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Plaintiffs, and all other HHA’s who work 24-hour shifts, generally must stay with the
patient for the duration of the shift. The HHA must be ready to provide care for the patient at
any time during that shift, if required. (Ex. 7, 113:18-114:6; Ex. 6, 44:19-45:8). The named
Plaintiffs testified that their patients required so much care at night that they never got the sleep
required by the NYLL. (Ex. 8, 33:24-34:09; Ex. 9, 23:21-22; Ex. 10, 34:23-35:08, 58:12-25; Ex.
11, 36:20-25, 38:17-25, 39:09-13, 54:07-12; see also Badzio, Malyaruk, Melamed, and Salo
affidavits). Patients with Alzheimer’s were particularly active at night, requiring extra attention
from the Plaintiffs charged with their care. (Ex. 8, 38:19-22; Ex. 10, 34:23-35:08). Plaintiffs
would try to fit in their meals when they could, often eating while they carried out their job
duties. (Ex. 8, 20:25-21:05; Ex. 10, 52:12-17). None of the named Plaintiffs were afforded the
required three one-hour meal breaks. (Badzio, Malyaruk, Melamed, and Salo affidavits). What
meal time Plaintiffs were afforded had to be spent near the patient, ready to provide care if
needed. (Ex. 12, 35:19-32, 56:2-6).
HHA’s used an automated phone system at the beginning and end of their shifts to report
their presence with the patient and the work tasks they performed. (Ex. 7, 117:17-24; Ex. 8,
28:06-09, 36:03-19; Ex. 12, 48:4-6, 56:13-16). Until April 2016, the system, called IVR, offered
no way to notify Defendants if the HHA had interrupted sleep or meal time. (Ex. 7, 120: 20-22;
Ex. 16; Ex. 12, 56:13-16). Plaintiff Badzio testified that she had been trained to call her
supervisors if she was not getting enough sleep, but that her supervisors did not “pay attention”
to her complaints. (Ex. 8, 35:18-23). Plaintiff Melamed testified that she was only instructed to
call the hotline in the event of something “unusual” or “extraordinary,” and sleepless nights were
neither unusual nor extraordinary. (Ex. 10, 35:22-36:19). Salo testified that she had heard
Defendants would cut her hours if she complained. (Ex. 11, 39:09-23). Defendants’ pay records
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from 2005 to 2016 thus contain no data concerning Plaintiffs’ or the proposed class members’
sleep or meal breaks.
Beginning in April 2016, Americare installed new dial-in codes to IVR. (Ex. 12, 46:09-
47:12, 56:13-16; Ex. 16). HHA’s may now input either “55” or “66” for interrupted sleep or
meal breaks, respectively. (Id.). However, the system does not ask HHA’s how many
consecutive or total hours of sleep or meal time they received. (Ex. 12, 51:15-18). The system
also does not trigger additional payment for an HHA unless their sleep was interrupted for a total
of three or more hours. (Id., 50:12-24, 53:06-13). Thus, even after the Andryeyeva, decision,
Defendants continue to violate the “hair trigger” rule requiring 24 hours of pay when an HHA
does not receive the minimum meal and sleep breaks. (Ex. 12, 50:12-24, 53:06-13).
Defendants pay their HHA’s who work 24-hour shifts for only 13 hours of work. (Ex. 5,
40:25-41:18; Ex. 12, 41:05-11). For much of the class period, that was $135.00 per 24-hour shift.
(Affidavit of Michele Falotico, NYSCEF Doc. No. 23 [“Falotico Aff.”], ¶ 3; Ex. 11, 27:12-19;
Ex. 10, 31:15-25; Ex. 8, 46:09-13; Ex. 7, 102: 21-103; Ex. 6, 42:19-22). This amounted to $5.63
per hour.
Americare presently employs about 3,000 HHA’s. (Ex. 5, 18:05-08). Although the exact
number of HHA’s who performed 24-hour shifts while in Defendants’ employ is unknown due to
the incomplete Rule 11 testimony, it was estimated to be at least 2,000 in 2012 (NYSCEF No.
65, p. 25-28). In the first half of 2011 alone, recently produced pay records show 1,151 HHA’s
who were paid a flat rate per shift at least once (Rozger Aff. ¶ 19); thus, the total number of class
members is likely to be in the thousands. Gallagher testified about 200 HHA’s perform 24-hour
shifts at present. (Ex. 12, 20:15-24).
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ARGUMENT
I. C.P.L.R. Article 9
CPLR 901(a) authorizes the certification of classes where the requirements of
numerosity, commonality, predominance, typicality, adequacy of representation, and superiority
have been met. CPLR 902 then sets forth criteria to be considered in determining whether class
certification is appropriate: namely, the interest of class members in controlling the litigation; the
inefficiency of separate or individual actions; the extent of prior litigation in the controversy; the
desirability of concentrating the litigation in the given forum; and any difficulties that may arise
in the management of the class action.
A. CPLR Article 9 is liberally construed in favor of class certification.
“New York’s statutory class certification provisions are to be liberally construed.”
Andryeyeva, 33 N.Y.3d at 183. Thus, “the interests of justice require that in a doubtful case ...
any error, if there is to be one, should be committed in favor of allowing the class action.” Friar
v. Vanguard Holding Corp., 78 A.D.2d 83, 100, 434 N.Y.S.2d 698 (2d Dept. 1980) (internal
quotations omitted). Consistent with this liberal construction, Article 9 is more expansive than
the corresponding Federal Rule of Civil Procedure 23. Though New York State courts often look
to the federal courts for guidance on class certification issues, that guidance is not mandatory.
Rosenfeld v. Robins Co., 63 A.D.2d 11, 14-15, 407 N.Y.S.2d 196, 198 (1978) (“[A]lthough our
own statute was patterned after Federal Rule 23, we are not constrained to follow the restrictive
views of the Federal courts.”); Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543-44, 995 N.Y.S.2d 13,
14-15 (2014) (holding that New York court was not required to apply “rigorous analysis” class
certification standard used by federal courts).
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II. The Putative Class Satisfies the Liberally Construed Criteria of C.P.L.R. §§ 901 and 902
A. C.P.L.R. § 901
1. Numerosity
CPLR § 901(a)(1) requires that the proposed class be “so numerous that joinder of all
members, whether otherwise required or permitted, is impracticable.” While there is no
mechanical test to determine whether numerosity has been met, “it has been repeatedly held that
‘the threshold for impracticability of joinder seems to be around forty.” Zeitlin v. New York
Islanders Hockey Club, 11 N.Y.S.3d 473 (Sup.Ct. Nassau Cty. 2015).
In the Court’s prior class certification decision, the number of HHA’s working 24-hour
shifts was estimated to be over 2,000 as of April 2012, when this Court found the numerosity
requirement had been met (NYSCEF No. 65 at 38; Ex. 4, 87:2-24), and that number only
increased since then. (Ex. 12, 20:15-24, 21:08-20; Rozger Aff. ¶19). These numbers vastly
exceed the Court of Appeals’ forty-person threshold, rendering joinder of all members highly
impracticable. As it did in 2016, this Court should find the requirement of numerosity easily met.
2. Commonality
CPLR § 901(a)(2) requires that “there are questions of law or fact common to the class
which predominate over any questions affecting only individual members.” In making this
assessment, “[t]he court should focus on ‘whether the use of a class action would achieve
economies of time, effort, and expense, and promote uniformity of decision as to persons
similarly situated.’” (NYSCEF No. 65 at 32), citing Friar, 78 A.D.2d at 97. Both commonality
and predominance are typically satisfied in cases like this, where the “ultimate issue” is whether
an employer paid its workers statutorily required wages. Jara v. Strong Steel Door, No.
14643/05, 2008 WL 3823769, at *13 (Sup. Ct. Kings Cty. Aug. 15, 2008); see also Chambery v.
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Tuxedo Junction Inc., No. 12-CV-06539 EAW, 2014 WL 3725157, at *4 (W.D.N.Y. July 25,
2014) (finding that “[c]ourts have not hesitated to find the commonality requirement met” where,
among other allegations, plaintiffs claimed that defendant had a policy of not paying all class
members overtime pay).
As determined by the Court in its December 14, 2016 decision, “‘[i]ssues of law and fact
common to all members of the proposed class predominate over individual issues because the
ultimate question in this litigation is whether or not [Americare] paid its workers’” in accordance
with state law. (NYSCEF No. 65 at 32-33). Additional questions that are common to the class
and necessary to the determination of each putative class member’s claims include the following:
(1) Whether Defendants had a policy or practice of failing to keep track of employees’ meal and
sleep breaks; (2) whether that policy or practice represented a failure of Defendants’ obligations
to maintain records of employee work time pursuant to N.Y.L.L. § 661 and 12 N.Y.C.R.R. 142-
2.6; and (3) how that failure to keep work time records reduces Plaintiffs’ burden of proof.
Answering these questions in a single action, as opposed to thousands of separate actions,
unquestionably achieves “economies of time, effort, and expense” and “promote[s] uniformity of
decision as to persons similarly situated.’” (NYSCEF No. 65 at 32), citing Friar, 78 A.D.2d at
97.
Additional common questions apply to class members who worked 24-hour, live-in shifts
after April 2016, when Defendants modified their automated phone system to include options for
reporting interrupted meal and sleep breaks. (Ex. 12, 46:09-47:12, 56:13-16). Given Defendants’
continued failure to track the HHA’s actual sleep and meal times, and the phone systems’
unlawful requirement that an aide lose 3 hours of sleep before receiving additional pay, another
common question exists of whether Defendants continue to violate Andryeyeva’s “hair trigger”
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rule requiring payment for eight additional hours of wages if an HHA does not receive eight total
and five consecutive, uninterrupted hours of sleep. (Ex. 12, 52:15-21). See Andryeyeva, 33
N.Y.3d at 181:
[F]ailure to provide a home health care aide with the minimum sleep and meal times required under DOL’s interpretation of the Wage Order is a ‘hair trigger’ that immediately makes the employer liable for paying every hour of the 24–hour shift, not just the actual hours worked. Thus, even if a home health care aide sleeps without interruption for four hours and 59 minutes, but is not able to obtain five full hours of sleep, DOL mandates the employer pay for the entire eight hours allotted for sleep.
A related question is how this violation relates to the Plaintiffs’ relaxed burden of proof
under Anderson v. Mt. Clemens, 328 U.S. 680 (1946), and related New York cases, discussed
supra. Of course, the Court need not decide the merits of these issues now. All that is necessary
for the class to be certified is a showing that the common issues exist. “It is enough that the
policies or practices that serve as the basis for Plaintiffs’ claims have been shown to apply
uniformly to the putative class.” Perez v. Isabella, No. 13-CV-7453(RA), 2016 WL 5719802, at
*2 (S.D.N.Y. Sept. 30, 2016).
In addition, numerous other courts have found commonality and predominance met in
nearly identical cases brought by home health aides working 24-hour, live-in shifts. See, e.g.,
Bernarez, 2020 WL 5590256, at *3-5 (finding commonality and predominance met where
HHA’s alleged there was no system in place to track sleep and meal time, they were paid a flat
rate for 12 hours per shift, and were not paid overtime or spread-of-hours pay); Troshin, 2021
WL 956245, at* 7-9 (same); Kurovskaya, 2020 WL 7046644, at *2 (certifying class of HHA’s
alleging “a system-wide pattern of violating the applicable labor law affecting possibly all of
defendant’s home health aides and personal care assistants”). Even where, as here, Defendants
claim they do have a policy, for at least part of the class period, of paying for interrupted sleep
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and meal breaks, this claim cannot preclude class certification. See Kurovskaya, 2020 WL
7046644, at *2-3 (“[E]ven if ... defendant’s witness had testified about a so-called ‘well-
established policy on paying employees for “live in” shift work,’ such testimony would not
mandate denial of plaintiffs’ motion but merely highlight a dispute of fact.”). In light of this
precedent and the factual and legal similarities between this case and Andryeyeva, Troshin,
Bernarez, Zuparov, and Kurovskaya, the Court should again find commonality satisfied.
3. Predominance
a. Plaintiffs satisfy the predominance requirement
Critically, these common questions uniting the class predominate over individual issues,
as required by CPLR § 901(a)(2). This requires merely “predominance, not identity or
unanimity, among class members.” Friar, 78 A.D.2d at 98; see also Branch v. Crabtree, 197
A.D.2d 557, 603, N.Y.S.2d 490 (2d Dept. 1993) (“[T]he predominance of questions of fact or
law over questions affecting only individual members is the test, not a nice inspection of the
claims of each individual member.”), quoting Weinberg v. Hertz Corp., 116 A.D. 1, 7 (1st Dept.
1986) (“The statute clearly envisions authorizations of class actions even where there are
subsidiary questions of law or fact not common to the class.”). “[P]redominance is satisfied
where,” as here, “the ‘central issue’ is whether defendants had a ‘uniform policy or practice’ of
denying wages for all hours worked.” Moreira v. Sherwood Landscaping Inc., No. CV 13-2640
(A KT), 2015 WL 1527731, at *13 (E.D.N.Y. Mar. 31, 2015).
Here, predominance is satisfied. Plaintiffs and the proposed class members are all
subject to the same unlawful policies regarding Defendants’ pay and record-keeping practices.
Defendants have uniformly failed to keep track of HHA’s sleep or meal time, and admittedly fail
to follow Andryeyeva’s “hair trigger” rule. Liability for all Plaintiffs and class members therefore
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hinges on the common question of whether these practices and policies violate the N.Y.L.L. The
Court found predominance satisfied in its December 14, 2016 decision, and it should do so again
here.
b. Individualized damages do not preclude a finding of predominance.
Defendants will argue that individual issues predominate because there are allegedly
differences among putative class members with respect to how frequently each was required to
work through meal and sleep breaks. However, New York courts have repeatedly held that the
need to calculate individualized damages does not preclude class certification. “The legislature
enacted CPLR 901(a) with a specific allowance for class actions in cases where damages differed
among the plaintiffs, stating ‘the amount of damages suffered by each class member typically
varies from individual to individual, but that fact will not prevent the suit from going forward as
a class action if the important legal or factual issues involving liability are common to the
class.’” Borden v. 400 E. 55th St. Assocs., L.P., 24 N.Y.3d 382, 399 (2014).
This argument was specifically rejected by Andryeyeva on remand, and by the subsequent
decisions certifying similar classes. See Andryeyeva, 2020 WL 2510472, at *6 (“As alleged by
plaintiffs, all putative class members worked under a uniform policy or practice that denied
wages for all hours actually worked by the home attendants working 24-hour shifts. An
inspection of each individualized damages suffered by each putative class member does not
defeat the predominance of that common issue as to whether defendants had a uniform policy or
practice to underpay the home attendants”); see also Troshin, 2021 WL 956245, at *7 (same);
Bernarez, 2020 WL 5590256, at *4-5 (same).
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c. Although not necessary for certification, Plaintiffs have several methods to prove classwide damages at their disposal
As set forth above, although a common method for calculating classwide damages is not
necessary for a class to be certified, Plaintiffs nevertheless have several available methods to do
so. First of all, because of Defendants’ failure to keep statutorily mandated records of the home
attendants’ sleep and meal time, the Court may draw an inference on behalf of all class members
that Defendants owe the class members the minimum wage for all of their overnight hours
during that period.
Defendants’ recordkeeping obligation arises from N.Y.L.L. § 195. All employers are
required to “establish, maintain and preserve … weekly payroll records” showing, inter alia, “the
number of hours worked daily and weekly.” 12 N.Y.C.R.R. 142-2.6; see also N.Y.L.L. § 195(4).
Accordingly, Defendants had a statutory obligation to keep records of (1) every time an
employee was required to work through one or more meal breaks, and (2) every time the needs
of a patient interfered with an employee’s ability to sleep for five uninterrupted hours, or eight
hours total. Where employers fail to keep statutorily required employment records, employees
enjoy a relaxed burden of proof. Mt. Clemens Pottery Co., 328 U.S. 680; see also Heenam Bae v.
Indus. Bd. of Appeals, 104 A.D.3d 571, 572, 963 N.Y.S.2d 2, 3 (1st Dept. 2013) (applying Mt.
Clemens proof standard to NYLL wage claims). Under Mt. Clemens when the employer has
failed to keep adequate records, an employee may prove their wage claim “as a matter of just and
reasonable inference.” 328 U.S. at 687. The burden of proof then “shifts to the employer to come
forward with evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence.” Id. at 687-88.
In applying this relaxed burden of proof, New York courts have held, in the class action
context, that such class members were entitled to an inference they were entitled to damages for
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all hours worked. Cardona v. Maramount Corp., No. 602877-2007, 2014 WL 2558176, at *19-
23 (Sup. Ct. N.Y. Cty. June 6, 2014) (“There is no need for an individualized damages showing
where [defendant] willfully failed to keep the requisite records at all.”); see also Hardgers-
Powell v. Angels In Your Home, 330 F.R.D. 89, 105 (W.D.N.Y. 2019) (“If [defendant] ignored
its duty, it did so at its peril.”)
Even under the more stringent Federal Rule 23 standard, Mt. Clemens obviates the need
for individualized inquiries of the kind Defendants will argue are necessary in this case. In Perez,
2016 WL 5719802, at *3-4, a strikingly similar federal case addressing a Rule 23 class of
Certified Nursing Assistants (“CNA’s”) with NYLL. overtime claims, the Southern District
found that, because of the Mt. Clemens burden-shifting framework, no individualized inquiries
were required to calculate damages for unpaid off-the-clock and meal break time, despite the fact
that some class members testified to suffering no damages. Id. at *3 (“[S]ome CNAs reported
having not worked off-the-clock or during meal breaks. … [T]hese arguments, however
persuasive they may prove to be at summary judgment or trial, are insufficient to bar class
certification.”) (citations omitted). Thus, the court held that, inter alia, the legality of the
employer’s policy of paying the CNA’s based on their scheduled hours, rather than the hours
actually worked, was a common question that predominated over any individual damages
questions. Id. at *2. Here, too, a common legal question is whether Defendants’ policy and
practice of failing to record the home attendants’ sleep and meal time, and therefore
“paying…based on their scheduled hours,” violates the Labor Law. See also Herman v. Palo
Group Foster Home, Inc., 183 F.3d 468, 473 (6th Cir. 1999) (finding burden of proof properly
shifted to defendants to rebut evidence that employees were undercompensated for sleepless
overnight shifts); Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442, 471 n.31 (S.D.N.Y. 2015)
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(burden-shifting framework applies to claims brought under the N.Y.L.L.); Saunders v. Getchell
Agency, Inc., No. 1:13-cv-00244-JDL, 2015 WL 1292594, at *3-4 (D. Maine March 23, 2015)
(supporting proposition in wage and hour case brought by overnight residential care workers that
“whether an employee’s hours were hours ‘actually worked’ does not have to be resolved on an
individual basis”). Thus, in this case, no individualized damages calculations would even be
necessary, once the class’ entitlement to damages as a whole was established.
In addition, Plaintiffs can also use a common formula to calculate damages by relying on
representative testimony. “[I]t is well settled...that when an employer fails to keep complete
records of hours, employees may prove their hours through representative testimony.” Jackson v.
Bloomberg, L.P., 298 F.R.D. 152, 168 (S.D.N.Y. 2014). Indeed, the Court of Appeals in
Andryeyeva specifically noted that “[a] difference in damage awards is an insufficient basis to
deny certification as a matter of law where the class may rely on representative evidence of the
class-wide violations.” Andryeyeva, 33 N.Y.3d at 185. Even a small percentage of the class may
be relied on to establish damages for the whole by way of representative testimony. Reich v.
Southern New England Telecomms. Corp., 121 F.3d 58, 69 (2d Cir. 1997) (affirming overtime
award on behalf of 1500 workers based on the representative testimony of only 2.5% of the
class). Such testimony need not be representative in a statistical sense. See, e.g., Indergit v. Rite
Aid Corp., 52 F. Supp. 3d 522, 525 (S.D.N.Y. 2014) (“Although Rite Aid asserts that there must
be a statistical basis for the sample to be representative, the focus in Reich was simply upon
whether the sample had qualitative factors that could give rise to a reasonable inference of a
violation or damages. … The Court is not persuaded that reliance upon a plausibly representative
sample of testimony, alongside other non-testimonial materials, cannot give rise to a reasonable
inference of violation of FLSA and the NYLL.”).
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Similarly, in the alternative, class members can rely on the testimony of experts to
establish a reasonable assessment of damages. The Court may divide the putative class into
subclasses based on expert testimony regarding the specific needs of class members’ patients.
See Rosenfeld, 63 A.D.2d at 31, citing David D. Siegel, New York Practice §§ 140-41 (Nov.
1977). Information about patient needs can be found on the patients’ Form 485’s, in Defendants’
possession, which list their primary and secondary diagnoses and care needs. (Ex. 12, 36:23-25).
Given the high likelihood that patients with Alzheimer’s, for example, will never sleep through
the night, the creation of a subclass for home attendants with Alzheimer’s patients obviates the
need for any individualized inquiry into the frequency of uninterrupted sleep breaks for that
particular subclass. Similar subclasses can be created for those with non-Alzheimer’s patients
who have their own specific, identifiable needs. Of course, plaintiffs can also combine multiple
methods of proof, which will stand or fall for the class as a whole. That is all that is required for
class certification.
Finally, the Court has several other tools at its disposal for conducting individualized
damages inquiries, following judgment on the common factual and legal issues. As recognized
by the Court in its December 14, 2016 decision, individual damages claims could be tried
separately by special master, or “if there is ultimately a finding of liability, the issue of individual
plaintiffs’ damages can be resolved in anyone of a number of ways, including, but not limited to,
the use of ‘proofs of claims’ as are done in other class actions….” (NYSCEF No. 65, p. 33-34)
(internal citations omitted); see also Rosenfeld, 63 A.D.2d at 31 (“The court can allow class
status for the purpose of trying the common issue and then, through various discretionary
alternatives, set up a mechanism whereby each class member individually proves his damages.”)
(internal quotations omitted).
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Thus, even if the Court were required to conduct individualized damages determinations
(which it would not, since Plaintiffs’ damages can be determined pursuant to a common
formula), that would not defeat a finding of commonality or superiority.
d. Moreno v. Future Health Care is no barrier to certification
Defendants will likely reply on Moreno v. Future Health Care., 186 A.D.3d 594 (2d
Dept. 2020), in which the Appellate Division denied class certification to a class of home health
aides working 24-hour, live-in shifts. The Appellate Division in Moreno denied class
certification because the plaintiffs failed to allege “in either their complaint or their class
certification motion that they did not receive the prescribed sleep and meal breaks.” Id. at 596
(emphasis added). In this case, of course, Plaintiffs all testified they never received the required
sleep or meal breaks. (Ex. 3, 33:24-34:09; Ex. 9, 23:21-22; Ex. 10, 34:23-35:08, 58:12-25; Ex.
11, 36:20-25, 38:17-25, 39:09-13, 54:07-12; affidavits of Badzio, Salo, Melemed, and
Malyaruk). Thus, the Moreno decision is inapposite.
4. Typicality
C.P.L.R. § 901(a)(3) requires that the claims or defenses of the representative parties be
typical of the claims or defenses of the class. “The essence of the requirement of typicality … is
that not only must the representative party have an individual cause of action but the interest of
the representative must be closely identified with the interests of all other members of the class.”
Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 93 Misc.2d 941, 945, 404 N.Y.S.2d 258
(Sup Ct. N.Y. County 1978), quoting 2 Weinstein-Korn-Miller, N.Y. Civ. Prac. & 901.09, Fed.
R. Civ. Pro. 23(a)(3). Plaintiffs’ claims need not be identical to those of the class. Branch, 197
A.D.2d at 557. When a plaintiff’s claims derive from the same practice or course of conduct that
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gives rise to the claims of other class members, and are based upon the same legal theory, the
typicality requirement is satisfied. Friar, 78 A.D.2d at 99.
Here, typicality is met because the named Plaintiff and the proposed class members’
claims all arise from Defendants’ systematic failure to track meal and sleep time and pay HHA’s
working 24 hour shift for such sleep and meal time, all in violation of the NYLL. In finding
typicality met in its December 14, 2016 decision, this Court noted that “the paramount issue”
was “defendants’ claimed conduct,” and “[c]learly, plaintiffs’ claims are typical of other
members of the potential class since they arise out of the same course of conduct as the potential
class members’ claims and are based on the same legal theories.” (NYSCEF No. 65, p. 34-35).
The Court was correct. See Troshin, at *6 (finding typicality where “[p[laintiffs allege that they
were paid pursuant to identical policies and suffered from defendant’s failure to record and
maintain adequate records of hours worked” and “[p]laintiffs’ claims are not antagonistic to or in
conflict with the other class members’ claims”). Moreover, similar to the plaintiffs in
Kurovskaya, 2020 WL 7046644, at *3, Plaintiffs in this case claim that they “typically did not
get an opportunity to sleep without interruptions for five hours due to [Americare’s] clients’
mental and medical conditions, and constant need for supervision.” (Ex. 8, 33:24-34:09; Ex. 9,
23:21-22; Ex. 10, 34:23-35:08, 58:12-25; Ex. 11, 36:20-25, 38:17-25, 39:09-13, 54:07-12).
Therefore, “the named plaintiffs have established their claims are typical of the claims to be
asserted by the putative class.” Id., at *3.
5. Adequacy of Representation
As a fifth requirement, C.P.L.R. § 901(a)(4) provides that plaintiffs must be able to
“fairly and adequately protect the interests of the class.” In making the determination as to
whether a plaintiff is a suitable class representative, courts may consider: (1) whether a conflict
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of interest exists between the representative and the class members; (2) the representative’s
background and personal character, as well as his or her familiarity with the lawsuit, to
determine the ability to assist counsel in its prosecution; (3) the competence, experience, and
vigor of the representative's attorneys; and (4) the financial resources available to prosecute the
action. Pruitt v. Rockefeller Center Properties, Inc., 167 A.D.2d 14, 24 (1st Dept 1991).
In its December 14, 2016 decision at 28-30, the Court found that Plaintiffs failed to
provide sufficient evidence to satisfy Section 901’s adequacy requirement, citing a lack of
evidence or discussion of “(1) the named plaintiffs’ ability to afford to prosecute this action, (3)
if such affordability is an issue that representative counsel will pay such costs on contingency,
(4) how notice is to be effected to the proposed class should certification be granted, (5) a copy
of such proposed notice, and (6) a proposed order of certification.” (NYSCEF No. 65, p. 30).
Plaintiffs by their conduct since that decision have sufficiently addressed these concerns.
First, Plaintiffs have demonstrated a commitment to the class by assisting with the preparation of
the Complaint, sitting for their depositions (Badzio and Malyaruk were deposed twice),
answering interrogatories, and producing documents. Plaintiffs are fully aware of the nature of
the claims in this litigation, including how Defendants have violated the law and what relief
Plaintiffs are entitled to as a result. See Williams v. Air Serv Corp., 121 A.D.3d 441, 442, 994
N.Y.S.2d 571, 572 (2014) (finding adequacy of representation where “the named plaintiffs have
sufficiently demonstrated at least a general awareness of the claims in this action, which is
sufficient for certification”). There is also no evidence that the named Plaintiffs’ interests are
antagonistic to those of the class in any way. See Bernarez, 2020 WL 5590256, at *6 (finding
adequacy of representation because “[p]laintiffs persuasively argue that they stand to gain a
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pecuniary benefit through the successful prosecution of the action, and that they seek the same
relief as the putative class members.”).
With respect to the ability of putative class members to financially prosecute this action,
the proposed class representatives worked for little more than the minimum wage and sometimes
less. Accordingly, class counsel has accepted this case on a contingency basis, and has advanced
all costs and will continue to do so. (Rozger Aff. ¶ 18).
Also relevant to the question of adequacy is whether Plaintiffs’ attorneys are qualified,
experienced, and able to conduct litigation. Class counsel—Menken Simpson & Rozger LLP
(formerly Beranbaum Menken LLP)—have extensive experience in wage and hour and class
action litigation and have been found adequate class counsel in numerous actions in this Circuit,
including: Andryeyeva v. New York Health Care, Inc., No. 14309/11, 2020 WL 2510472 (N.Y.
Sup. Ct., May 15, 2020); Ramos v. SimplexGrinnell L.P., 796 F.Supp.2d 346, 358 (E.D.N.Y.
2011); Mitchell v. County of Clinton, No. 06 Civ. 254, 2007 WL 1988716, at *6 (N.D.N.Y. July
5, 2007); Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005); Sipas v.
Sammy’s Fishbox, Inc., No. 05 Civ. 10319, 2006 WL 1084556 (S.D.N.Y. April 24, 2006); and
Canales et al. v. 115 Broadway Corp. et al., No. 08 Civ. 4674, 2009 WL 3029333 (S.D.N.Y.
June 5, 2011).
Finally, a proposed form of order and proposed class notice are attached as Exhibits 14
and 15, respectively. As each of the Court’s concerns regarding this factor have been addressed,
Plaintiffs have satisfied their burden thereunder.
6. Superiority
Finally, C.P.L.R. § 901(a)(5) requires a finding that a class action is superior to other
methods for the fair and efficient adjudication of the controversy. Here, there is no question that
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a class action is the superior method to pursue this litigation. The alternative of requiring
thousands of individual actions is an ineffective and inefficient method which could lead to
conflicting determinations and the imposition of different (and, perhaps, incompatible) standards
upon Defendants. The size of the class is very likely in the thousands. Yet, given the relatively
small size of each claim, many class members would be unable to afford pursuing redress of
Defendants’ N.Y.L.L. violations absent class certification. See Nawrocki v. Proto Const. & Dev.
Corp., 82 A.D.3d 534, 536, 919 N.Y.S.2d 11, 12-13 (1st Dept. 2011) (“[S]ince the damages
allegedly suffered by an individual class member are likely to be insignificant, and the costs of
prosecuting individual actions would result in the class members having no realistic day in court,
we find that a class action is the superior vehicle for resolving this wage dispute.”); Kurovskaya,
2020 WL 7046644, at *4; Bernarez, 2020 WL 5590256, at *6.
B. C.P.L.R. § 902
In determining whether to certify a class action, the Court must also consider the factors
listed in C.P.L.R. § 902: (1) the interest of members of the class in individually controlling the
prosecution or defense of separate actions; (2) the impracticality or inefficiency of prosecuting or
defending separate actions; (3) the existence of other litigation regarding the same controversy;
(4) the desirability of the proposed class forum; and (5) the difficulties likely to be encountered
by management of a class action. All of these factors favor maintaining the instant litigation as a
class action.
1. Interest in Individual Control
There is no indication that there is any significant interest by the class members in
controlling the prosecution of their own claims. To the Plaintiffs’ counsel’s knowledge, there
have been no class members who have sought to bring their own cases, and in any event, class
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members should be given the opportunity to opt out of the class action of they wish, thereby
removing all doubt this factor should not stand in the way of certification. C.P.L.R. § 903.
2. The Impracticality or Inefficiency of Prosecuting Separate Actions
It is obvious that the prosecution of separate actions by each affected home attendant
employee of Defendants would be “highly impractical and very inefficient.” Krebs v. Canyon
Club, Inc., No. 10431/08, 2009 WL 440903, at *16 (N.Y. Sup. Ct. Jan. 2, 2009). Each individual
plaintiff would have to file suit, conduct discovery, and participate in a trial. Defendants’
depositions would also be required, and it is likely that the same representatives would be subject
to repeated depositions and trials. Repeated searches and production would also have to be done
with respect to payroll documentation. This would undoubtedly be a “wasteful and duplicative
procedure from the point of view of plaintiffs and defendants,” thus weighing in favor of
certification. Id.
3. The Existence of Other Litigation Regarding the Same Controversy
Plaintiffs are aware of no other pending class litigation over the present controversy with
these defendants.
4. The Desirability of the Proposed Class Forum
The only other potential forum available for home attendant employees would be an
administrative one. As discussed above, this opinion is simply not practical given the size of the
class. Jara, 2008 WL 3823769. Also, as discussed above and unlike in Jara, this case is not
predicated upon failure to pay prevailing wages, and there is no requirement that Plaintiffs
exhaust their administrative remedies prior to filing suit. Krebs, 2009 WL 440903, at *17. “Since
the statute does not express a preference for forum, it seems just and appropriate to certify the
class and afford class members an informed choice of forum, as well as to give [defendants] the
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opportunity to move to decertify the class, if it is so advised, after the period to opt-out has
expired.” Id. at *19.
5. The Difficulties Likely to Be Encountered by Class Action Management
As discussed above, having all claimants in a single forum would lean in favor of a class
action, as it would avoid burdening the parties and the patrons with multiple appearances in
multiple forums. Id. Further, having the Court manage discovery would likely make the discovery
process more manageable, rather than having multiple patrons make multiple applications to quash
administrative subpoenas or to have multiple courts hear the same issues.
Ultimately, the putative class meets the requirements of both C.P.L.R. §§ 901 and 902.
CONCLUSION
For the foregoing reasons, Plaintiffs request that the Court certify, under C.P.L.R.
Sections 901 and 902, a class of all Home Health Aides (“HHA’s”) who worked 24-hour shifts
for Defendants Americare Certified Special Services, Inc., and/or Americare, Inc. between
September 27, 2005, and the date Defendants cease, or are enjoined from, not paying those
individuals the minimum, overtime, and spread-of-hour wages required by the New York Labor
Law and regulations; to order the Defendants to produce the name, last known address, and
telephone number of all class members; and to approve the proposed class notice.
Dated: New York, New York
May 7, 2021
MENKEN SIMPSON & ROZGER LLP
s/ Jason J. Rozger
s/ Raya F. Saksouk
80 Pine St., 33rd Fl.
New York, NY 10005
T: 212-509-1616
F: 212-509-8088
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