Opinion
2017–11586 Index No. 607829/15
11-13-2019
Melvin MEDINA, etc., Respondent, v. FAIRWAY GOLF MANAGEMENT, LLC, et al., Defendants, Mill Pond Country Club Caterers, Inc., et al., Appellants.
Silverman Acampora, LLP, Jericho, N.Y. (Brian J. Shenker and Alan B. Pearl of counsel), for appellants. Leeds Brown Law, P.C., Carle Place, N.Y. (Suzanne B. Klein, Brett R. Cohen, Jeffrey K. Brown, and Michael A. Tompkins of counsel), for respondent.
Silverman Acampora, LLP, Jericho, N.Y. (Brian J. Shenker and Alan B. Pearl of counsel), for appellants.
Leeds Brown Law, P.C., Carle Place, N.Y. (Suzanne B. Klein, Brett R. Cohen, Jeffrey K. Brown, and Michael A. Tompkins of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In a putative class action to recover damages for violations of Labor Law § 196–d, the defendants Mill Pond Country Club Caterers, Inc., John Rossi, Anthony Gillespie, and Michael Danon appeal from an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered August 8, 2017. The order granted the plaintiff's motion for class certification pursuant to CPLR article 9.
ORDERED that the order is affirmed, with costs.
The plaintiff, a catering service employee, commenced this action to recover damages for violations of Labor Law § 196–d. He alleged that the defendants, owners and operators of a golf course and its food and beverage catering operation, improperly retained mandatory service charges that were imposed upon customers for catered events, which customers would reasonably believe were gratuities for the catering employees. The plaintiff moved for class certification pursuant to CPLR article 9. The Supreme Court granted the motion, and the defendants Mill Pond Country Club Caterers, Inc., John Rossi, Anthony Gillespie, and Michael Danon appeal.
The proponent of a motion for class certification bears the burden of establishing compliance with the requirements of CPLR 901 and 902 (see Cooper v. Sleepy's, LLC, 120 A.D.3d 742, 743, 992 N.Y.S.2d 95 ). CPLR 901(a) sets forth the five requirements for certification of a class action: "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." "[T]he court may also consider the merits of the action to the extent necessary for the elimination, as early as possible, of spurious actions" ( Hoerger v. Board of Educ. of Great Neck Union Free School Dist., 98 A.D.2d 274, 278, 471 N.Y.S.2d 139 ; see Weinstein v. Jenny Craig Operations, Inc., 138 A.D.3d 546, 547, 30 N.Y.S.3d 618 ; Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 422, 904 N.Y.S.2d 372 ; Brandon v. Chefetz, 106 A.D.2d 162, 168, 485 N.Y.S.2d 55 ).
It has long been recognized that the criteria set forth in CPLR 901(a) " ‘should be broadly construed ... because it is apparent that the Legislature intended [CPLR] article 9 to be a liberal substitute for the narrow class action legislation which preceded it’ " ( City of New York v. Maul, 14 N.Y.3d 499, 509, 903 N.Y.S.2d 304, 929 N.E.2d 366, quoting Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 91, 434 N.Y.S.2d 698 ; see Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129, 135, 871 N.Y.S.2d 263 ).
We agree with the Supreme Court's determination that the plaintiff satisfied the requirements of CPLR 901(a). Contrary to the appellants' contention, the plaintiff demonstrated that his claim "arose out of the same course of conduct and [is] based on the same theories as the other class members" ( Ackerman v. Price Waterhouse, 252 A.D.2d 179, 201, 683 N.Y.S.2d 179 ; see Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399, 998 N.Y.S.2d 729, 23 N.E.3d 997 ; Pruitt v. Rockefeller Ctr. Props., 167 A.D.2d 14, 22, 574 N.Y.S.2d 672 ; Friar v. Vanguard Holding Corp., 78 A.D.2d at 99, 434 N.Y.S.2d 698 ). " ‘[I]t is not necessary that the claims of the named plaintiff be identical to those of the class’ " or that the named plaintiff be able to assert all the claims made on behalf of the class ( Pruitt v. Rockefeller Ctr. Props., 167 A.D.2d at 22, 574 N.Y.S.2d 672, quoting Super Glue Corp. v. Avis Rent A Car Sys., 132 A.D.2d 604, 607, 517 N.Y.S.2d 764 ). In addition, the evidence established that the plaintiff, and his counsel, would adequately represent the class (see Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d at 400, 998 N.Y.S.2d 729, 23 N.E.3d 997 ; Ackerman v. Price Waterhouse, 252 A.D.2d at 202, 683 N.Y.S.2d 179 ; Pruitt v. Rockefeller Ctr. Props., 167 A.D.2d at 24, 574 N.Y.S.2d 672 ). Contrary to the appellants' further contention, the plaintiff's evidence "was sufficient to satisfy the minimal threshold of establishing that [his] claim was not a sham" ( Weinstein v. Jenny Craig Operations, Inc., 138 A.D.3d at 547, 30 N.Y.S.3d 618 ).
Accordingly, we agree with the Supreme Court's determination to grant the plaintiff's motion for class certification.
MASTRO, J.P., HINDS–RADIX, MALTESE and BRATHWAITE NELSON, JJ., concur.