Opinion
159312/2016
03-12-2021
Ihor TROSHIN and Other Persons Similarly Situated Who Were Employed By the Stella Orton Home Care Agency, Inc., Plaintiffs, v. The STELLA ORTON HOME CARE AGENCY, INC., Defendant.
Virginia & Ambinder LLP, New York, NY ( LaDonna Lusher, Michele A. Moreno, and Joel L. Goldenberg of counsel), for plaintiffs. FordHarrison LLP, New York, NY ( Philip K. Davidoff and Jeffrey A. Shooman of counsel), for defendant.
Virginia & Ambinder LLP, New York, NY ( LaDonna Lusher, Michele A. Moreno, and Joel L. Goldenberg of counsel), for plaintiffs.
FordHarrison LLP, New York, NY ( Philip K. Davidoff and Jeffrey A. Shooman of counsel), for defendant.
Gerald Lebovits, J.
This is a wage-and-hour action brought by a former home health aide, plaintiff Ihor Troshin (on behalf of himself and a prospective class), against Troshin's former employer, defendant Stella Orton Home Care Agency, Inc. Troshin now moves for class certification. Stella Orton opposes the motion; and it requests by letter dated February 19, 2021, that this court grant renewal of the court's prior decision and order denying Stella Orton's motion to compel arbitration. Troshin's motion for class certification is granted (albeit of a class that is somewhat narrower in scope than that sought in the motion). Stella Orton's letter application to renew is denied.
BACKGROUND
A. Troshin's Class-Wide Allegations
Named plaintiff Troshin is a home health aide. Defendant, Stella Orton Home Care Agency, provides residential nursing and home health aide services. Troshin worked for Stella Orton from some time in 2004 until January 2015. ( See NYSCEF No. 1, at 16.)
In November 2016, Troshin brought this action on behalf of himself and a prospective class of other home health care employees who were employed by Stella Orton at the time of filing or who previously had been so employed during the class period. ( See NYSCEF No. 1, at 1, 10.) The complaint alleges, in brief, that beginning in 2010, and continuing through the time of filing, class members had been repeatedly forced to work extremely long hours without receiving wages and benefits to which they were statutorily and contractually entitled. ( See id. at 2-4.) It asserted (i) claims for violations of various wage and overtime provisions of the Labor Law and its implementing regulations, and (ii) third-party-beneficiary claims for breach of the contract(s) between Stella Orton and various New York State and New York City agencies to pay wages consistent with the terms of the Health Care Worker Wage Parity Law and certain City ordinances. ( See id. at 57-101.)
Troshin's motion papers in support of class certification amplify these allegations. The State Department of Labor (DOL) sets minimum wages in various fields of employment in New York State by regulations (or Wage Orders). The Department has interpreted its Wage Order in the home health-care field to impose what is known as the 13-Hour Rule. Under this rule, home health aides assigned to 24-hour live-in shifts may be paid for only 13 hours of the 24— if, and only if , the aides are (i) afforded eight hours for sleeping, including (ii) five hours of uninterrupted sleep; and if they are (iii) afforded three hours for meal breaks. ( See Andryeyeva v New York Health Care, Inc. , 33 NY3d 152, 165-166 [2019].) If any of these three conditions are not met, however, the employer must pay for all 24 hours of the shift. ( See id. at 166, 177 n 5.)
Troshin asserts in a sworn affidavit that he and his coworkers were "instructed not to leave the clients by themselves." (NYSCEF No. 72 at ¶ 10.) As a result, given Stella Orton's "clients' mental and medical conditions, and their constant need for supervision," he and the members of the prospective class working 24-hour shifts routinely failed to receive either five hours of uninterrupted sleep or three one-hour meal breaks. ( See NYSCEF No. 72 at ¶¶ 9-15; see also NYSCEF No. 73 at ¶ 11.) Troshin has also submitted an affidavit from another former Stella Orton home health aide representing that Stella Orton took no action when she repeatedly complained to her supervisor about not receiving sleep breaks during 24-hour shifts. ( See NYSCEF No. 73 at ¶ 19.) Nor, Troshin alleges, did Stella Orton inform him or his coworkers that they were entitled to additional pay if they did not receive sleep and meal breaks during 24-hour shifts. ( See NYSCEF No. 72 at ¶ 17.)
In fact, Troshin alleges that Stella Orton lacked any procedures or methods in place for tracking whether its home health aides on 24-hour shifts were receiving sleep and meal breaks, or for keeping records of the hours that such aides were working. ( See id. at ¶¶ 16, 22.) To the contrary, Troshin asserts, Stella Orton's time-management system for home health aides called for aides only to "punch in" and "punch out" (through dialing an automated telephone system) at the beginning and end of the shift—without a comparable means of punching in and out at the beginning and end of a sleep or meal break. ( See id. at ¶ 23.) And Stella Orton did not ask aides for the hours they had in fact worked. ( See id. ; see also NYSCEF No. 73 at ¶¶ 17-20, 22-23.)
Relatedly, Troshin asserts that Stella Orton paid Troshin and other class members a flat per diem rate for each 24-hour shift (as provided for under the governing collective bargaining agreement), regardless whether they were entitled to payment for 13 hours of work or payment for 24 hours of work under the DOL Wage Order—and this per-diem rate in fact only represented 12 hours of work. ( See NYSCEF No. 72 at ¶¶ 18-19.) Thus, Troshin alleges, Stella Orton systematically failed to pay its home health aides the minimum hourly wage required by DOL's Wage Order and the 13-Hour Rule.
In addition, Troshin alleges that Stella Orton systematically failed to pay its home health aides overtime when they worked more than 40 hours in a given week, a "spread of hours" premium when they worked 10 or more hours in a given week, or equivalent compensation in benefits, in violation of State and City ordinances and regulations. ( See NYSCEF No. 72 at ¶¶ 24-26; NYSCEF No. 73 at ¶¶ 24-27.) Stella Orton allegedly also failed to pay aides for the time incurred in traveling between different clients during a given shift, in violation of the Labor Law. ( See NYSCEF No. 72 at ¶¶ 18-21.)
B. This Motion for Class Certification
Troshin now moves to certify this action as a class action under CPLR article 9 (mot seq 002). ( See NYSCEF No. 70.) The proposed class is to consist of "[a]ll individuals who performed work on behalf of [Stella Orton] as non-residential home health aides and/or personal care assistants in the State of New York from November 4, 2010." (NYSCEF No. 83 at 1 [internal pagination] [defining proposed class]; NYSCEF No. 159 at 20 n 9 [internal pagination] [limiting scope of proposed class].) The motion also seeks designation of Troshin's counsel, the law firm of Virginia & Ambinder, LLP, as class counsel; and approval for publication of a proposed class notice submitted by Troshin. ( See NYSCEF No. 70 at 1.)
Separately, Stella Orton has filed a letter requesting renewal of this court's prior denial of Stella Orton's motion to compel arbitration, in light of a recent, related decision of the U.S. District Court for the Southern District of New York.
DISCUSSION
I. Stella Orton's Threshold Challenges to Class Certification
A motion for class certification will be granted only if the movant satisfies the criteria of CPLR 901 and 902. Before considering whether Troshin's submissions in support of class certification meet this burden, this court must consider two threshold objections raised by Stella Orton: that (i) Troshin's claims (and thus class certification) fail because the claims are subject to mandatory arbitration rather than litigation ; and (ii) the claims fail to state a cause of action and thus should not be afforded class-action status. This court concludes that these threshold objections are without merit.
In addressing this objection, this court also considers Stella Orton's application to renew this court's prior denial of Stella Orton's motion to compel arbitration. ( See NYSCEF No. 176.)
A. Stella Orton's Arbitration-Related Objection to Class Certification
1. Stella Orton's argument that the class claims must be arbitrated
Stella Orton argues that under the CBA between Stella Orton and 1199SEIU (the union representing home health aides employed by Stella Orton), Troshin's claims and those of the prospective class are required to be individually arbitrated. This court largely disagrees.
Stella Orton and 1199SEIU entered into a Memorandum of Agreement on December 16, 2015, that amended the CBA to include a mandatory arbitration provision. After the motion for class certification was filed, Stella Orton moved to compel arbitration of Troshin's claims (and the claims of the prospective class); Troshin moved in turn to enjoin arbitration.
In a prior order resolving those two motions, this court held that (i) arbitrability of the claims of Troshin and the prospective class was for the court, not an arbitrator to determine; and (ii) the arbitration provision added by the 2015 MOA does not apply to or bind Stella Orton employees who—like Troshin—left employment before Stella Orton and 1199SEIU executed the MOA. ( See Troshin v Stella Orton Home Care Agency, Inc. , 2020 NY Slip Op 51042[U] [Sup Ct, NY County 2020].) In so holding, this court expressly declined to follow the contrary determinations on these two points of Arbitrator Martin Scheinman, which he rendered as part of a global wage-and-hour arbitration between 1199SEIU labor union and home health agencies. ( See id. at *5 & nn 6-7.) This court granted Troshin's motion to enjoin arbitration of his claims and of prospective class members who left Stella Orton's employment on or before December 15, 2015, and it denied Stella Orton's motion to compel arbitration.
Given this court's holding on the parties' respective motions relating to arbitration, the court rejects Stella Orton's argument on this motion that class certification should be denied because the prospective class's claims must be individually arbitrated instead. To be sure, Troshin has conceded, and this court has held, that the claims of home health aides or personal care assistants who were employed by Stella Orton on or after December 16, 2015, are subject to mandatory arbitration. ( See Troshin , 2020 NY Slip Op 51042[U], at *7 & n 9, citing NYSCEF No. 159 at 20 n 9.) The scope of the prospective class must therefore be limited to individuals who worked for Stella Orton on or after the starting date of the proposed class period (November 4, 2010), and who stopped working for Stella Orton on or before December 15, 2015. But the 2015 MOA's arbitration provision does not otherwise foreclose the current class-certification motion.
2. Stella Orton's application to renew its prior unsuccessful motion to compel arbitration of the class claims
Stella Orton now requests renewal of its motion to compel arbitration. ( See NYSCEF No. 176.) The request to renew is denied.
This court issued its decision on the parties' arbitration motions during the pendency of a petition to confirm Arbitrator Scheinman's arbitrability determination. As noted above, this court had rejected Arbitrator Scheinman's determination in reaching its own decision. The petition was brought in the U.S. District Court for the Southern District of New York (Koeltl, J.). The district court held oral argument on that petition in December 2020— i.e. , after this court had issued its decision. In February 2021, the district court granted the petition to confirm. ( See 1199SEIU United Healthcare Workers East v PSC Community Servs. , 2021 WL 708584 [SD NY Feb. 19, 2021].) Stella Orton now contends that the district court's confirmation of Arbitrator Scheinman's arbitrability determination warrants this court's revisiting of the denial of Stella Orton's motion to compel. This court is not persuaded.
As an initial matter, Stella Orton's request for renewal is procedurally improper: it has been brought as a two-page letter application, rather than as an actual motion. Although the court recognizes Stella Orton's desire for expedition, the appropriate means of serving that goal would have been to bring on a motion by order to show cause, rather than raise a request to renew in a letter. Nonetheless, the letter clearly lays out the basis for Stella Orton's renewal request. ( See NYSCEF No. 176). And Troshin has had an opportunity meaningfully to respond in kind. ( See NYSCEF No. 177.) The court is disinclined in these circumstances to deny renewal solely on that procedural ground.
Considering the request to renew on its merits, this court concludes that renewal is unwarranted. Stella Orton suggests that this court is required heed the district court's confirmation of Arbitrator Scheinman's arbitrability determination; and that this confirmation "effectively divests this Court of jurisdiction over this Action." (NYSCEF No. 176 at 2.) But Stella Orton does not identify any support for either of those propositions. Stella Orton does not identify the legal authority that it is relying upon, or even whether that authority sounds in state or in federal law. Nor does Stella Orton explain why (either as a matter of law or common sense) this court should withdraw an order that rejected an arbitrator's arbitrability determination—and enforced that rejection by injunctive relief barring arbitration—merely because a federal district court later agreed with the arbitrator. This court is unpersuaded that it should grant renewal based only on Stella Orton's unsupported assertion.
Stella Orton also suggests that given the district court's decision confirming Arbitrator Scheinman's determination, this court "is no longer constrained to follow the Appellate Division cases" that drove this court's arbitrability conclusions in its prior order. ( See NYSCEF No. 176 at 2 n 2.) The court declines to accept this remarkable suggestion.
The district court's decision confirming in full the arbitrator's decision is open to question in any event. The district court credited Arbitrator Scheinman's analysis of why the governing collective-bargaining agreement delegated the determination of arbitrability to the arbitrator, rather than the court. ( See PSC Community Services , 2021 WL 708584, at *12.) In so doing, though, the district court did not address the fundamental flaw in that analysis: the arbitrator relied on a delegation made in Article XXVI of the CBA, notwithstanding that (i) the 2015 MOA amending the CBA stated that the new arbitration provision was the exclusive means of resolving Labor Law wage-and-hour claims like those asserted here (thus superseding Article XXVI), and (ii) the new arbitration provision lacked the delegation language found in Article XXVI. ( See Troshin , 2020 NY Slip Op 51042[U], at *5-*6 & n 6.) Moreover, the district court held that the arbitrator had reasonably concluded that home health-care workers who left employment before the execution of the 2015 MOA could still be compelled to arbitrate their claims. ( See PSC Community Services , 2021 WL 708584, at *13.) But the district court—like the arbitrator—did not even acknowledge, much less distinguish, the multiple decisions of the Appellate Division—and the Second Circuit—holding to the contrary. ( See Troshin , 2020 NY Slip Op 51042[U], at *5 [collecting cases].)
That Stella Orton is, in substance, asking this court to vacate its prior order in favor of an order compelling arbitration highlights a more fundamental problem with the application. As noted above, this court enjoined arbitration of the claims of Troshin (and of a subset of the proposed class) not only before the district court's decision confirming Arbitrator Scheinman's arbitrability determination, but before oral argument on the petition to confirm. The fact that Stella Orton continued to seek a district-court ruling confirming arbitrability of those claims is thus in some tension with the requirements of this court's injunction. And to the extent the district court's decision requires arbitration of the claims (as Stella Orton now contends), that decision conflicts squarely with this court's injunction. This court declines to grant Stella Orton's request for renewal, and thereby vacate this court's injunction, in light of a district-court decision that Stella Orton sought and obtained months after the injunction had been entered.
It is not clear from the information now available to this court whether Stella Orton informed the district court that this court had enjoined arbitration of the claims of Troshin and other Stella Orton employees who had left employment before the execution of the 2015 MOA.
B. Stella Orton's CPLR 3211 (a) (7) Objection to Class Certification
In addition to its arbitration-related challenge, Stella Orton argues that the motion to certify should be denied because the claims both of Troshin and the prospective class fail for a variety of reasons to state a cause of action. This court disagrees. In "determining whether an action should proceed as a class action," the court is not to conduct a full-scale inquiry into the merits akin to a dispositive motion or trial. ( Pludeman v Northern Leasing Sys., Inc. , 74 AD3d 420, 422 [1st Dept 2010].) Rather, any merits inquiry is "limited to a determination as to whether on the surface there appears to be a cause of action for relief which is neither spurious nor sham." ( Bloom v Cunard Line, Ltd. , 75 AD2d 237, 240 [1st Dept 1980].)
In this case, Stella Orton vigorously attacks (and Troshin vigorously defends) the potential merits of the wage-and-hour claims asserted by Troshin, and potentially asserted by the class that Troshin seeks to represent. This court need not, and does not, decide which side's merits-related arguments should ultimately prevail. At a minimum, Stella Orton has not persuaded this court that Troshin's claims (and those of the prospective class) are so insubstantial as to be a sham warranting denial of Troshin's motion to certify a class.
II. Stella Orton's CPLR Article 9 Challenge to Class Certification
Beyond the threshold challenges discussed above, Stella Orton also contends that this action fails to satisfy the requisites of CPLR article 9, governing class actions.
Under CPLR 901, an action may be maintained on a class basis if (i) "the class is so numerous that joinder of all members is impracticable (numerosity)"; (ii) "questions of law or fact common to the class predominate over questions of law or fact affecting individual class members (commonality)"; (iii) "the claims or defenses of the class representatives are typical of those in the class (typicality)"; (iv) "the class representatives will fairly and adequately protect the interests of the class"; and (v) "a class action represents the superior method of adjudicating the controversy (superiority)." ( Pludeman , 74 AD3d at 421-422, citing CPLR 901 [a].) If movant has satisfied these prerequisites, the court should then consider "additional factors promulgated by CPLR 902 such as the interest of individual class members in maintaining separate actions and the feasibility thereof; the existence of pending litigation regarding the same controversy; the desirability of the proposed class forum; and the difficulties likely to be encountered in managing the class action." ( Id. at 422.)
The party seeking class certification bears the burden to establish through proof in admissible form that the criteria of CPLR 901 (a) have been satisfied. ( Kudinov v Kel-Tech Constr., Inc. , 65 AD3d 481 481 [1st Dept 2009].) Deciding whether movant has met this burden "is within the sound discretion of the trial court." ( Pludeman , 74 AD3d at 422.) In exercising that discretion, the court must be mindful that CPLR article 9 must be liberally construed in favor of permitting class actions to proceed. ( See Andryeyeva , 33 NY3d at 183-184 ; City of NY v Maul , 14 NY3d 499, 508-509 [2010].)
Here, Troshin has alleged that Stella Orton employed hundreds of home health aides during the class period ( see NYSCEF No. 72 at ¶ 3). That allegation amply satisfies CPLR article 9's numerosity requirement. ( See Globe Surgical Supply v GEICO Ins. Co. , 59 AD3d 129, 137-138 [2d Dept 2008] [collecting cases].) And Stella Orton does not dispute numerosity. Nor does Stella Orton meaningfully contest the issue of typicality, Troshin's contention that he will fairly and adequately protect the interests of class members, or that the proposed class action would satisfy the CPLR 902 factors.
The dispute between the parties focuses instead on whether there exist common questions of law and fact that predominate over individual issues, such that proceeding as a class action is the superior method of adjudicating this controversy. This court concludes that common questions do predominate and that this controversy should be adjudicated on a class basis.
As discussed in Background Section A, supra , Troshin alleges that Stella Orton systematically failed to track the hours that its home health aides worked during assigned 24-hour shifts or whether aides assigned 24-hour shifts received the sleep and meal breaks to which they were entitled under DOL's 13-Hour Rule. He also alleges that he and other aides routinely failed to receive those sleep and meal breaks, given the needs of their clients—even after they repeatedly complained about the lack of a break in which to sleep—but were never told that as a result they were entitled to additional compensation. As a result, Troshin alleges, Stella Orton's flat per-shift compensation for 24-hour shifts routinely fell below the minimum wage. Additionally, Troshin alleges that Stella Orton systematically failed to pay required overtime and spread-of-hours compensation.
In addition to submitting sworn affidavits to this effect ( see generally NYSCEF Nos. 72, 73), Troshin has submitted supporting evidence in the form of Stella Orton's own policy manual and time and hour records. The policy manual, for example, directs aides never to leave certain types of clients alone ( see NYSCEF No. 74 at 22), and instructs aides that sleeping on duty is prohibited ( see id. at 10). The manual sets out a procedure only for aides to clock in and out at the beginning and end of shifts ( see id. at 19), without providing any procedure for aides (or Stella Orton) to track the hours that they worked (and that they used for sleep and meals) during shifts. Nor does the manual even mention the subject of sleep or meals during 24-hour shifts at all. ( See id. ) Troshin also has submitted examples of anonymized payroll records for other class members that reflect per-shift compensation for 24-hour shifts, with no indication of whether the payments represented payment for 13 or for 24 hours of work; and that also reflect an absence of overtime or spread-of-hours pay. ( See NYSCEF No. 75, at 1-7.) And Troshin has submitted samples of his own payroll records that indicate that Stella Orton was treating him as having worked only 12 hours during each 24-hour shift (not 13). ( See id. at 8-10.)
In short, Troshin has submitted proof in admissible form supporting a claim that at best Stella Orton paid its home health aides working 24-hour shifts as if they were receiving sleep and meal breaks—despite the fact that Stella Orton had reason to believe that was the case, and despite the fact that Stella Orton had no way to tell one way or the other. And Troshin has similarly submitted proof in admissible form supporting a claim that Stella Orton failed to pay its aides overtime and spread-of-hours compensation (whether in the form of cash or benefits). Two other judges of this court have recently certified home-health-aide class actions on very similar allegations. ( See Kurovskaya v Project O.H.R. (Office for Homecare Referral), Inc. , 2020 NY Slip Op 33977[U] [Sup Ct, NY County Dec. 1, 2020] [Kotler, J.]; Bernardez v Alternate Staffing, Inc. , 2020 NY Slip Op 33067[U] [Sup Ct, NY County Sept. 17, 2020] [Goetz, J.].) This court concludes that Troshin's allegations, too, warrant certification of his suit as a class action.
Stella Orton argues in opposition that this action is not suitable for class treatment because Troshin has not offered class-wide proof to show that his allegations about not receiving sleep and meal breaks apply across the membership of the proposed class; as a result, Stella Orton argues determining the wage claims of the class necessarily requires an individualized, plaintiff-by-plaintiff analysis that would make class adjudication inappropriate. ( See NYSCEF No. 95 at 19-22.) This court is not persuaded.
As an initial matter, Stella Orton's argument implicitly assumes that many of its home health aides did receive the sleep and meal breaks required under the 13-Hour Rule (thus entailing individualized proof to determine which aides did not). This court is somewhat skeptical, given Troshin's allegations that he and his coworkers were never told that they were entitled to more pay absent sleep and meal breaks, and Stella Orton's failure to in procedures for tracking breaks or hours actually worked during a 24-hour shift.
Be that as it may, the First Department also has emphasized that the commonality issue 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.’ " ( Pludeman , 74 AD3d at 423, quoting Friar v Vanguard Holding Corp. , 78 AD2d 83, 97 [2d Dept 1980].) Here, absent class treatment, the same evidence and proof of Stella Orton's systematic policies with respect to tracking, recording, and compensating hours worked by health aides on 24-hour shifts would need to be assembled and submitted in hundreds or even thousands of wage-and-hour actions—assuming it would be cost-effective for such actions to be brought at all. In these circumstances, this court concludes that it would be more efficient and more equitable to have these key class-wide questions resolved on a class-wide basis. That is particularly true since, on Troshin's allegations, Stella Orton's own (lack of) record-keeping policies led to the absence of class-wide evidence on whether Stella Orton's home health aides working 24-hour shifts received sleep and meal breaks.
Additionally, the home health agencies in Andryeyeva , like Stella Orton, raised the argument that the claims there would entail individualized proof that should preclude class certification. ( See 33 NY3d at 183.) The Court of Appeals refrained from definitively deciding the certification issue given the procedural posture of the appeal. But the Court went out of its way to cast doubt on the defendants' individualized-proof argument. ( See id. at 183-185.) Indeed, after summarizing the plaintiffs' allegations—which are strikingly similar to those made by Troshin here—the Court of Appeals noted that these "claims of uniform systemwide violations are particularly appropriate for class certification," and "suggest a policy or practice of unlawful action of the type our courts have previously found ripe for class treatment." ( Andryeyeva , 33 NY3d at 184.)
Notably, Stella Orton's individualized-proof argument relies heavily on federal district court decisions denying class certification of similar home-health-aide actions under Federal Rule of Civil Procedure 23. But the First Department has held expressly that New York trial courts are not required to apply the federal Rule 23 standard in deciding class-certification motions, "given this Court's recognition that CPLR 901(a) ‘should be broadly construed’ and that ‘the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it.’ " ( Stecko v RLI Ins. Co. , 121 AD3d 542, 543-544 [1st Dept 2014] [quoting Maul , 14 NY3d at 509 ] [affirming grant of class certification].)
This court concludes that Troshin's request for class certification should be granted. That conclusion does not entirely resolve this motion, however. Troshin also seeks approval of a proposed class-action notice to be mailed to members of the class. Certain aspects of the proposed notice (particularly the scope of the class) are no longer accurate given this court's decision here and on the motion to enjoin arbitration. More significantly, Stella Orton has notified the court that it objects to several (unspecified) aspects of the proposed notice. ( See NYSCEF No. 95 at 26.) Those objections should be fully heard and addressed (either between the parties or by this court) before any notice is approved or mailed.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the branch of Troshin's motion seeking certification of this action as a class action is granted, but the scope of the class is limited as set forth above; and it is further
ORDERED that Stella Orton's letter application to renew its motion to compel arbitration is denied; and it is further
ORDERED that the branch of Troshin's motion seeking designation of Virginia & Ambinder, LLP as class counsel is granted; and it is further
ORDERED that the branch of Troshin's motion seeking approval for publication of the proposed class-action notice and publication order is granted only to the extent that the parties are directed to meet and confer on the contents of the class-action notice and publication order; and the parties are directed to submit to this court within 30 days (by e-filing and email to mhshawha@nycourts.gov) either an agreed-upon joint proposed notice and publication order (if possible), or alternative proposed notices and publication orders for this court's selection. If the parties submit alternative proposed notices/orders, they should provide both clean and redline versions of their submissions to facilitate this court's review of their proposals.