Opinion
Index No. 150980/2020 Motion Seq. No. 002
12-09-2022
AMANDO PEREZ, Plaintiff, v. ANEJO, LLC, ANEJO TRIBECA, LLC, DAVID FEIT, ANGELO SOSA, JOHN PAUL VALENTI, JOHN A. DIEHL, RICARDO CAMACHO, CHARLIE DOE Defendants.
Unpublished Opinion
MOTION DATE 09/23/2022
PRESENT: HON. PAULA.GOETZ Justice
DECISION + ORDER ON MOTION
PAUL A. GOETZ, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 50, 51, 52, 74, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 166, 167, 168 were read on this motion to/for ORDER MAINTAIN CLASS ACTION.
In this putative class action plaintiff Amando Perez (Perez) moves pursuant to CPLR §§ 901 and 902 to certify this case as a class action (mot. seq. no. 002) "consisting] of all current and former front-of-house, tipped employees employed by [defendants at their New York restaurants from on or after January 28, 2014 to the present" (class or class members). Defendants, Anejo, LLC, Anejo Tribeca, LLC (collectively the corporate defendants or restaurants), David Feit, Angelo Sosa, John Paul Valenti, John A. Diehl, Ricardo Camacho, and Charlie Doe (collectively the individual defendants) oppose the motion: (1) as untimely; (2) due to procedural defects; and (3) for insufficient evidence of the class certification prerequisites of commonality and typicality.
Background
Plaintiff, formerly employed as a food runner by defendants, who own and operate two restaurants located in New York City, Anejo Tribeca (301 Church Street, New York, New York 10013) and Anejo Hell's Kitchen (668 10th Avenue, New York, New York 10035), alleges wage and hour violations under New York Labor Law (NYLL) (see Plaintiff Aff, ¶¶1-3, NYSCEF Doc No 42). Specifically, plaintiff claims the class and he were subject to: (1) unpaid minimum wages due to an invalid tip credit deduction and (2) unpaid spread of hours premium. The alleged violations include improper tip credit notice, payment below the hourly minimum wage, retention of employee tips, improper tip-credit deductions, required performance of non-tipped duties for more than 20 percent of shifts, failure to pay spread of hours premium, and failure to provide proper wage and hour notices and statements (Complaint, p 14, NYSCEF Doc No 2).
A. Preliminary Procedural Issues
Defendants claim that plaintiffs motion must be denied due to various procedural defects. Defendants first claim that Perez's motion is untimely because plaintiff filed the motion more than sixty days since the date that defendants' answer was due. According to CPLR § 902, "[w]ithin sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine whether it is to be so maintained." "Failure to seek class certification within this sixty-day period mandates denial of the class certification motion with prejudice." (Egan v Telomerase Activation Scis., Inc., 2014 WL 1764918, *1 [SC, NY Co 2014, index No. 652533/12], aff'd 127 A.D.3d 653 [1st Dept 2015]; see also Shultz v Cambridge Dev., LLC, 200 A.D.3d 624 [1st Dept 2021]).
Here, defendants' answer was due on March 30, 2020, though on April 13, 2021, this Court ordered in the proposed Preliminary Conference order that plaintiff was to file his motion on or before July 30, 2021 (Exh D, NYSCEF Doc No 50). Accordingly, plaintiffs submission of this motion on July 22, 2021 was timely pursuant to the Preliminary Conference order.
Defendants next claim that plaintiffs affidavit is not admissible evidence in violation of CPLR § 2101 (b) for not including a translator affidavit since Perez is a non-English speaker. CPLR § 2101 (b) states, "[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate." Absent "a translator's affidavit, required of foreign-language witnesses, [] the witness's English affidavit [is] facially defective and inadmissible." (Reyes v Wentworth Mgmt. Corp., 83 A.D.3d 47, 54 [2d Dept 2011]; see also Peralta-Santos v 350 W. 49th St. Corp., 139 A.D.3d 536 [1st Dept 2016]). Plaintiff is permitted to cure what is substantively an inconsequential error (see B.B. Y. Diamonds Corp. v Five Star Designs, Inc., 6 A.D.3d 263, 264 [1st Dept 2004] ["Renewal may be granted where the failure to submit an affidavit in admissible form was inadvertent and there is no showing by the opposing party of any prejudice attributable to the delay caused by the failure."]; see also Feuerman v Marriott Int'l, Inc., 201 A.D.3d 566 [1st Dept 2022]) and in his reply papers, plaintiff submitted a translator's affidavit. Since plaintiffs papers remain substantively unchanged, the rule of dismissing new evidence submitted for the first time in reply papers does not apply here (see EPF Int'l Ltd. v Lacey Fashions Inc., 170 A.D.3d 575, 575 [1st Dept 2019] ["The function of reply papers is to address arguments made in opposition to the position taken by the movant, and not to permit the movant to introduce new arguments in support of, or new grounds for the motion."]). Accordingly, plaintiffs cure via the translator affidavit on reply permits consideration of his affidavit.
B. Class Certification Pursuant to CPLR §§ 901 and 902
The class action statute should be liberally construed (Pruitt v Rockefeller Ctr. Props., 167 A.D.2d 14, 21 [1st Dept 1991]; see also Stecko v RLI Ins. Co., 121 A.D.3d 542 [1st Dept 2014]) and provides that a class action may be maintained if:
(CPLR § 901 [a]). Once these prerequisites are satisfied, the factors in CPLR § 902 must be considered (Ackerman v Price Waterhouse, 252 A.D.2d 179, 191 [1st Dept 1998]):(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
(CPLR § 902).(1) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (2) the impracticability or inefficiency of prosecuting or defending separate actions; (3) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (4) the desirability or undesirability of concentrating the litigation of the claim in the particular forum; [and] (5) the difficulties likely to be encountered in the management of a class action."
The plaintiff must establish by competent evidence the requirements set forth in CPLR §§ 901 and 902 for obtaining class certification (see Ackerman, 252 A.D.2d at 191) but a trial court has broad discretion in determining whether a matter qualifies as a class action (Rabouin v Metro. Life Ins. Co., 25 A.D.3d 349, 350 [1st Dept 2006]).
"In determining whether an action should proceed as a class action, it is appropriate to consider whether the claims have merit" (Pludeman v N. Leasing Sys., Inc., 74 A.D.3d 420, 422 [1st Dept 2010]). However, "inquiry on a motion for class action certification vis-a-vis the merits is limited to a determination as to whether on the surface there appears to be a cause of action which is not a sham" (Brandon v Chefetz, 106 A.D.2d 162, 168 [1st Dept 1985]; see also Weinstein v Jenny Craig Operations, Inc., 138 A.D.3d 545 [1st Dept 2016]).
1. CPLR § 901 (a) (1) - Numerosity
CPLR § 901 (a) first requires numerosity such that joinder of all class members is impracticable. "There is no 'mechanical test' to determine whether . . . numerosity has been met nor is there a set rule for the number of prospective class members which must exist before a class is certified." (Friar v Vanguard Holding Corp., 78 A.D.2d 83, 96 [2d Dept 1980] [internal citations omitted]). "Each case depends upon the particular circumstances surrounding the proposed class and the court should consider the reasonable inferences and commonsense assumptions from the facts before it." (Id. [internal citations omitted]; see also Globe Surgical Supply v Geico Ins. Co., 59 A.D.3d 129, 138 [2d Dept 2008]).
Here, plaintiff alleges in his moving papers that the prospective number of class members who currently or formerly worked at defendants' restaurants as front-of-house tipped employees exceeds 50 (see Plaintiffs Memorandum of Law, p 15, NYSCEF Doc No 38). This is sufficient to demonstrate numerosity (Lewis v Hallen Constr. Co., 193 A.D.3d 511 [1stDept 2021] [affirming certification based on affidavits attesting that at least 30 to 50 workers performed the work at issue]). Additionally, joinder of approximately 50 employees "would be impractical and management of the case would be complex and difficult if. . . each [were] entitled to representation by counsel of their own selection (see Krebs v Canyon Club, Inc., 22 Misc.3d 1125[A], 2009 NY Slip Op 50291 [U], *8 [SC, Westchester Co 2009]). Accordingly, the numerosity requirement has been satisfied.
2. CPLR § 901 (a) (2) - Commonality
CPLR § 901 (a) (2) requires commonality such that common questions of law or fact predominate over any questions affecting individual members. "[C]ommonality cannot be determined by any mechanical test and ... the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action." (City of New York v Maul, 14 N.Y.3d 499, 514 [2010] [internal quotation marks and citation omitted]). Instead, the court should focus on whether class treatment will "achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated." (Friar, 78 A.D.2d at 97 [internal quotation marks and citation omitted]). "[T]he rule requires predominance not identity or unanimity among class members." (Pludeman, 74 A.D.3d at 423).
Here, there are issues whether defendants (1) provided an improper tip credit notice to all class members; (2) failed to pay appropriate minimum wage; (3) required that class members engage in excessive non-tipped work; (4) properly paid class members proper spread of hours premium; and (5) provided class members proper wage statements and notices pursuant to WTPA that predominate over the whole putative class (see Plaintiffs Sur-Reply, NYSCEF Doc No 147).
Contrary to defendants' argument, plaintiff may represent other class members whose jobs encompassed duties beyond those of plaintiff s. Illustratively, the First Department, in Nawrocki v Proto Construction & Development Corp., specifically permitted bricklayers to represent a class of all the other types of tradesmen working at a public works construction site (82A.D.3d534, 535-36 [1st Dept 2011]).
Defendants' next argument that class membership may only be open to those working for defendants during plaintiffs tenure at the restaurant is equally unavailing (see,e.g., Barlin v Pizza Jerks, Ltd., 71 Misc.3d 1230[A], 2021 NY Slip Op 50534[U] [SC, Warren Co 2021] [certifying a class of drivers who worked for defendant any time within six years prior to the filing of the action with a class representative who worked for defendant for a year and a half]; Krebs, 22 Misc.3d 1125[A] [certifying a class of wait staff who worked for defendant any time within six years prior to the filing of the action with a class representative who worked for defendant for less than a year]; Dabrowski v Abax, Inc., 2010 WL 3016782, 2010 NY Slip Op 3198[U] [SC, NY Co 2010] aff'd 84 A.D.3d 363 [1st Dept 2011] [certifying a class of laborers who worked for defendants over the course of six years with class representatives who worked for defendant for five years]). Accordingly, the commonality requirement has been satisfied.
3. CPLR § 901 (a) (3) - Typicality
The typicality prerequisite is met where "plaintiffs claim derives from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory." (Friar, 78 A.D.2d at 99; see also Pludeman, 74 A.D.3d at 420). "Typicality does not require identity of issues and the typicality requirement is met even if the claims asserted by class members differ from those asserted by other class members." (Pludeman, 74 A.D.3d at 423).
Here, there is sufficient evidence (see NYSCEF Doc No 147) that putative class members were impacted by defendants': (1) failure to pay employees additional pay up to the minimum wage when tips were insufficient (see Exh G, NYSCEF Doc No 151); (2) excessive tip retention (see Exh H, NYSCEF Doc No 152); and (3) failure to pay spread of hours premium (see Exh N, NYSCEF Doc No 158).
Defendants' argument, unsupported by any legal authority, that the putative class should be limited to only those who worked at the Tribeca location is unpersuasive because plaintiff has proffered indicia of a common scheme employed at both restaurants (improper tip credits at both locations [see Exh J, NYSCEF Doc No 154], not paying spread of hours premium at both locations [see Exh N, NYSCEF Doc No 158], and tip credit notices with the names of both locations on them [see Exh E, NYSCEF Doc No 149]; see Barlin, 71 Misc.3d 1230[A] [certifying a class of delivery drivers who worked for a chain of three restaurants]; see also Weinstein, 138 A.D.3d at 547 [certifying a class of current and former non-managerial employees of 23 weight-loss centers because "the same types of subterfuge [were] allegedly employed to pay lower wages."]).
Lastly, defendants' employee liability argument is premature at this stage because it is a factual inquiry in need of further delineation by both parties at a later stage (see Ramlochan v Westchester Shores Event Holdings, Inc., 67 Misc.3d 1208[A], at *4 [SC, Westchester Co, 2020]). Accordingly, the typicality requirement has been satisfied.
4. CPLR § 901 (a) (4) - Adequacy of Representation
"Whether the representative party will fairly and adequately protect the interest of the class involves a number of considerations-whether a conflict of interest exists between the representative and the class members, the representative's background and personal character, as well as his familiarity with the lawsuit, to determine his ability to assist counsel in its prosecution and, if necessary, to act as a check on the attorneys, and, significantly, the competence, experience and vigor of the representative's attorneys and the financial resources available to prosecute the action."(Pruitt, 167 A.D.2d at 24 [internal quotation marks and citations omitted]).
Here, plaintiff submitted an affidavit stating his willingness and ability to act as a class representative as well as his familiarity and awareness of his claims and the claims of those he seeks to represent (see NYSCEF Doc No 42, ¶ 16). Plaintiffs counsel established they are experienced in litigating complex wage and hour matters and are willing and able to commit the necessary resources to litigate this case (see NYSCEF Doc No 38, p 18). Accordingly, the adequacy of representation requirement has been satisfied.
5. CPLR § 901 (a) (5) - Superiority
"[A] class action is the 'superior vehicle' for resolving wage disputes 'since 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 have no realistic day in court.'" (Stecko, 121 A.D.3d at 543 [internal citations omitted]; see also Lavrenyuk v Life Care Servs., Inc., 198 A.D.3d 569 [1st Dept 2021]). Given the expense and burden of litigating individually coupled with the potential for the imposition of different and perhaps, incompatible standards, a class action is the superior method of litigating this matter. Accordingly, the superiority requirement has been satisfied.
6. CPLR §902
Having met all the prerequisites for CPLR § 901 (a), the CPLR § 902 factors also sway in plaintiffs favor for class certification. As previously mentioned, the type of wage and hour claims in this matter do not favor separate actions, which would be less desirable, effective, and cost-efficient (CPLR §§ 902 [l]-[2]). Moreover, this Court is an appropriate forum since the class members work (or worked) in New York (CPLR § 902 [4]). There is no competing litigation commenced by other class members according to plaintiff (CPLR § 902 [3]; NYSCEF Doc No 38, p 22). And there are no apparent difficulties in managing this class action as compared to the complications of managing individual actions (CPLR§ 902 [5]).
7. CPLR§903
CPLR § 903 provides that "[t]he order permitting a class action shall describe the class. When appropriate the court may limit the class to those members who do not request exclusion from the class within a specified time after notice."
8. CPLR § 904 - Notice of Class Action
CPLR § 904 (b) provides that "reasonable notice of the commencement of a class action shall be given to the class in such manner as the court directs." In addition, CPLR § 904 (c) states that "[t]he content of the notice shall be subject to court approval." Plaintiff submits a proposed notice of class action in support of his motion though defendant objects to the term "New York restaurants" as overly broad as well as plaintiffs inclusion of "liquidated damages." Due to these objections, the parties are to meet and confer and jointly submit a class notice for Court approval.
Accordingly, it is hereby
ORDERED that plaintiffs motion to certify a class consisting of all current and former front-of-house, tipped employees employed by defendants at Anejo Tribeca, LLC and Anejo, LLC from on or after January 28, 2014 to the present is granted; and it is further
ORDERED that plaintiff Amando Perez is appointed representative of the class; and it is further ORDERED that Lee Litigation Group, PLLC is appointed as class counsel; and it is further
ORDERED that the parties shall meet and confer regarding a class notice within twenty (20) days of the date of this order and within ten (10) days thereafter email to the Part 47 clerk the proposed class notice for Court approval or a request for a conference because the parties could not reach an agreement on the class notice.