| Moreno v Future Care Health Servs., Inc. |
| 2017 NY Slip Op 06439 [153 AD3d 1254] |
| September 13, 2017 |
| Appellate Division, Second Department |
[*1]
| Adriana Moreno, Individually and on Behalf of All OthersSimilarly Situated, et al., Appellants, v Future Care Health Services, Inc., et al.,Respondents. |
Getman & Sweeney, PLLC, New Paltz, NY (Michael J. D. Sweeney and ArtemioGuerra of counsel), Abbey Spanier, LLP, New York, NY (Judith L. Spanier and NancyKaboolian of counsel), and National Employment Law Project, New York, NY (CatherineRuckelshaus and Sarah Leberstein of counsel), for appellants (one brief filed).
Peckar & Abramson, P.C., New York, NY (Aaron C. Schlesinger and Alexander X.Saunders of counsel), for respondents.
In a putative class action, inter alia, to recover damages for violations of Labor Law article19, the plaintiffs appeal (1) from an order of the Supreme Court, Kings County (Schmidt, J.),dated April 24, 2015, which denied their motion for class certification pursuant to CPLR article9, and (2), as limited by their brief, from so much of an order of the same court (Knipel, J.) datedOctober 27, 2015, as, upon reargument, adhered to the original determination in the order datedApril 24, 2015.
Ordered that the appeal from the order dated April 24, 2015, is dismissed, as that order wassuperseded by the order dated October 27, 2015, made upon reargument; and it is further,
Ordered that the order dated October 27, 2015, is reversed insofar as appealed from, on thelaw and in the exercise of discretion, upon reargument, the order dated April 24, 2015, is vacated,and the plaintiffs' motion for class certification pursuant to CPLR article 9 is granted; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiffs were employed by the defendant Future Care Health Services, Inc. (hereinafterFuture Care), as home health care attendants for Future Care's disabled and elderly clients. Theplaintiffs worked a number of 24-hour shifts for Future Care for which they were paid flat ratesof $115 to $125 per shift, and they allegedly did not "live-in" the homes of Future Care's [*2]clients. The plaintiffs commenced this action, alleging that FutureCare's practice of paying them a flat rate for their 24-hour shifts resulted in a wage that wasbelow the minimum wage in violation of the Labor Law.
The plaintiffs moved to certify a class of home health care attendants who had worked24-hour shifts for Future Care after February 6, 2007, and had been paid a flat daily rate insteadof the minimum wage for each hour of the shift. The Supreme Court denied the motion. Relyingon an opinion letter issued by the New York State Department of Labor (hereinafter DOL) onMarch 11, 2010, the court concluded that Future Care was not required to pay the plaintiffs foreach hour of a 24-hour shift, but was permitted to exclude 8 hours of sleep time and 3 hours ofmeal time from the plaintiffs' wages, so long as that time was actually afforded. Based on itsinterpretation of the opinion letter, the court concluded that the plaintiffs had failed to establishthe numerosity, commonality, and typicality requirements for class certification because afact-intensive individualized inquiry would be required for each putative class member todetermine whether each putative class member was actually afforded 8 hours of sleep time and 3hours of meal time during each 24-hour shift. Upon reargument, the court adhered to its originaldetermination.
To the extent that the DOL's opinion letter fails to distinguish between "residential" andnonresidential employees, it conflicts with the plain meaning of 12 NYCRR 142-2.1 (b), andshould not be followed (see Andryeyeva v New York Health Care, Inc., 153 AD3d1216, 1219, 2017 NY Slip Op 06421, *2 [2017] [decided herewith]; Tokhtaman v Human Care, LLC, 149AD3d 476, 477 [2017]). To the extent that the members of the proposed class were not"residential" employees who "live[d]" on the premises of their employer, they were entitled to bepaid the minimum wage for all 24 hours of their shifts, regardless of whether they were affordedopportunities for sleep and meals (12 NYCRR 142-2.1 [b]; see Andryeyeva v New YorkHealth Care, Inc., 153 AD3d at 1219 [decided herewith]; seegenerally Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192-193 [2016]; Matter ofSettlement Home Care v Industrial Bd. of Appeals of Dept. of Labor of State of N.Y., 151AD2d 580, 581-582 [1989]).
The plaintiffs established the existence of the five prerequisites to class certification (seeCPLR 901 [a]; City of New York vMaul, 14 NY3d 499, 508, 514 [2010]), and none of the factors listed in CPLR 902warranted a denial of the motion for class certification (see Jiannaras v Alfant, 124 AD3d 582, 584 [2015], affd 27NY3d 349 [2016]; Dowd v AllianceMtge. Co., 74 AD3d 867, 869 [2010]; Argento v Wal-Mart Stores, Inc., 66 AD3d 930, 934 [2009]).Accordingly, upon reargument, the Supreme Court should have vacated its original determinationand granted the plaintiffs' motion for class certification (see Andryeyeva v New York HealthCare, Inc., 153 AD3d at 1219 [decided herewith]). Balkin, J.P., Hall, LaSalle and Barros, JJ., concur.