Opinion
Index Number 157235/2017
05-24-2019
SAIDA WALLACE, individually and on behalf of all other persons, similarly situated who were employed by TRI-MED HOME CARE SERVICES, INC., Plaintiff, v. TRI-MED HOME CARE SERVICES, INC., Defendant.
NYSCEF DOC. NO. 36 DECISION AND ORDER FRANK P. NERVO, J.S.C. Plaintiff seeks an order pursuant to CPLR § 3124 compelling defendant respond to plaintiff's First Pre-Class Certification Set of Interrogatory Demands and produce material outlined in plaintiff's First Pre-Class Certification Demand for the Production of Documents and Things. Plaintiff further seeks to extend the deadline for pre-class certification discovery and to adjourn the deadline to file a Note of Issue. Defendant opposes the motion. This action arises out of plaintiff's claims that she, and other similarly situated employees of defendant Tri-Med Home Care Services (hereinafter the "putative class"), did not receive appropriate wages and compensation in accordance with New York Labor Law. Plaintiff, and the putative class, are home health care workers who are assigned to work at an individual client's home for 24-hour shifts. During her shift, plaintiff was required to stay overnight, and provide care for the client during all hours of her shift. Plaintiff alleges that she was paid a flat-rate for each 24-hour shift regardless of the hours actually worked, that she was not paid applicable overtime for hours worked in excess of 40 per week, that she was entitled to a spread of hours in accordance with applicable labor law, and defendant breached their contract in that the wages paid were inconsistent with New York's Wage Parity Act and Living Wage Law. Plaintiff seeks pre-class certification discovery relating to information regarding the putative class members, and documents related to plaintiff's claims for breach of contract. Defendant contends that the recent Court of Appeals decision in Andryeyeva v. New York Health Care, Inc., eviscerates plaintiff's, and the putative class', claims (infra). CPLR § 3124 provides that a party seeking disclosure may move to compel compliance or a response if the responding party fails to respond or comply with a request, notice, interrogatory demand or question pursuant to Article 31 of the CPLR. CPLR § 3101(a) directs that there "shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof" (Forman v. Henkin, 30 NY3d 656, 661 [2018]). The test utilized is "one of usefulness and reason" (Id.). A pre-class certification plaintiff is entitled to "limited discovery in order to adduce evidence to meet her burden of showing that the statutory prerequisites to certification of a class are met" (Chimenti v. American Express Co., 97 AD2d 351, 352 [1st Dept 1983]).
CPLR § 901(a) sets forth the prerequisites for a class action:
Should a plaintiff satisfy the requirements proscribed by CPLR § 901, the Court will then consider the factors set forth in CPLR § 902 to determine whether a class action should be maintained (see also Ackerman v. Price Waterhouse, 252 AD2d 179, 191 [1st Dept 1998]).1. The class is so numerous that joinder of all members, whether otherwise required or permitted is impractical;
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 adequate 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 states that "[a]mong the factors which the court shall consider in determining whether the action may proceeds as a class action are:
At issue in the instant action is New York's Minimum Wage Order (12 NYCRR § 142-2.1[b]), and by implication an opinion letter providing guidance on the minimum wage order issued by the Department of Labor (DOL), a subsequent "Emergency Rule" by the DOL, and the recent Court of Appeals decision in Andryeyeva. The 2010 opinion letter stated, in relevant part, that "live-in employees, whether or not they are residential employees, must be paid not less than for thirteen hours per twenty-four hour period provided that they are afforded at least eight hours for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals" (Opinion Letter from Maria L. Colavito, Counsel, DOL, Mar. 11, 2010). The Appellate Division, however, rejected the application of the 2010 DOL opinion letter to nonresidential employees, finding it in direct conflict with the Minimum Wage Order, and held that nonresidential employees were entitled to be paid the minimum wage for all hours of their shifts, irrespective of time designated for sleep and meals (Tokhtaman v. Human Care, LLC, 149 AD3d 476 [1st Dept 2017]; Andryeyeva v. New York Health Care, Inc., 153 AD3d 1216 [2d Dept 2017]). Thereafter, the DOL issued an "Emergency Rule" amending the Minimum Wage Order (12 NYCRR § 142-231[b]) "in the face of recent divisions by the State Appellate Divisions that treat meal periods and sleep time by home care aids who work shifts of 24 hours or more as hours worked for purposes of state (but not federal) minimum wages" to include the following:1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
2. The impracticability or inefficiency of prosecution or defending separate actions;
3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum;
5. The difficulties likely to be encountered in the management of a class action.
Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that excluded from hours worked under the fair labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aid who works a shift of 24 hours or more.(N.Y. Reg, Oct. 25, 2017 at 5-6.) The Court of Appeals, with Judge Rivera writing for the majority, reversed the decisions of the Appellate Division and found that DOL's interpretation of its wage order did not conflict with the promulgated language (Andreyeyeva v. New York Health Care, Inc., 2019 NY Slip Op 02258 [March 26, 2019]). Here, in light of the Court of Appeals decision, defendant contends that a class action cannot be sustained against it for a violation of the Minimum Wage Order, to wit defendant paid workers according to DOL guidelines upheld by the Court of Appeals. This Court does not so find. Plaintiff, on behalf of a putative class, has alleged breach of contract for failure to pay a wage consistent with the Wage Parity Act and Living Wage Law, failure to pay required overtime for hours worked in excess of 40 per week, failure to spread hours according to applicable labor laws, and that defendant paid plaintiff a flat rate per 24 hour shift regardless of whether plaintiff was afforded 3 hours for meals, 8 hours for sleep, and actually received 5 hours of uninterrupted sleep. Andreyeyeva did not address these issues and expressly found that "[i]f, in fact, the aide does not receive the minimum break time because the patient needs assistance, the aide is paid for 24 hours of work time. As DOL confirms, 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 11; see also Kurovskaya v., Project O.H.R., N.Y. Index Number 150480/2016 [N.Y. Sup. Ct. N.Y. Co., June 13, 2018 [Kotler, J.][finding the issues before the Court of Appeals in Andreyeyeva did not dispose of the claims at issue here]). The material sought by plaintiff is necessary to determine whether the requirements of CPLR §§ 901 and 902 can be met by the putative class. Accordingly, it is ORDERED that the motion is granted and defendant is to provide full responses to plaintiff's First Pre-Class Certification Set of Interrogatory Demands and Plaintiff's First Pre-Class Certification Demands for the Production of Documents and Things, including information and documents pertaining to the putative class members for the relevant periods of time within 45 days of notice of entry of this order; and it is further ORDERED that the pre-class certification discovery deadline is extended to September 30, 2019; and it is further ORDERED that plaintiffs shall move for class certification on or before 30 days after the close of pre-class certification discovery; and it is further ORDERED that plaintiffs' March 22, 2019 deadline to file a Note of Issue and Certificate of Readiness is vacated and will be determined at a later conference date. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated May 24, 2019
ENTER:
/s/_________
J.S.C.