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

[email protected]

FILED: KINGS COUNTY CLERK 05/07/2021 09:34 PM INDEX NO. 506155/2016

NYSCEF DOC. NO. 219 RECEIVED NYSCEF: 05/07/2021

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mailto:[email protected]

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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

[email protected]

[email protected]



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