Bago v. La Brochette, Inc.

Bago v La Brochette, Inc. 2025 NY Slip Op 31533(U) April 29, 2025 Supreme Court, New York County Docket Number: Index No. 153644/2023 Judge: Lisa S. Headley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 153644/2023 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 04/29/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LISA S. HEADLEY PART 28 Justice - ------X INDEX NO. 153644/2023 ANDRAS BAGO ALEXANDRU GEREA MOTION DATE 07/19/2024 Plaintiff, MOTION SEQ. NO. _ _...;OOc.::..;:.3_ _ - V- LA BROCHETTE, INC, ABA KOIUNOV. DECISION + ORDER ON MOTION Defendant.

-··----··-·-·---------·-------..-·--------------------------·----------------X The following e-fited documents, listed by NYSCEF document number (Motion 003) 64, 65, 66, 67, 68, 69, 70, 71 , 72 , 73. 74, 75, 76, 77 . 78, 79, 80, 81 , 82.83, 84, 85.86, 87, 88, 89, 90,91 , 92,93 were read on this motion to/for ORDER MAINTAIN CLASS ACTION Background On April 20, 2023, Plaintil1s, Andras Ilago (''Mr. Rago") and Alcxandru Gerea (-'Mr. Gerca'') ("Plaintiffs"), filed th is action for violations of the New York Labor Law, New York State Human Righ ts I.aw and New York Cily Human Rights Law. against Defendants., La Rrochette, Inc. and Aba Koiunov ("Defendants"). Plaintiffs commenced lhis action against the Defendants, their former employers, for l) failure to pay minimum wage: 2) tip misappropriation; 3) failure to pay non-overtime wages; and 4) violation of notice and record-keeping requirements. According to the defendants, La Brochette, Inc. is a small restaurant that serves Kosher food in Manhattan.

Plaintiffs allege they worked as servers, who were tipped employees, at the Defendants' establishment from December 2017 unti l January 2020. Plain1iffs allege that they, as well as former and current servers, were paid less than the minimum wage by the Defendants.

On July 19, 2024, Plaintill\; filed this motion for an order certifying this action as a class action of 1hc Defendants' servers pursuant to Article 9 of the Civil Prnctice Law & Rules ("CPLR''). Specifically, Plaintiffs' motion seeks an Order: I) certifying that this action may be maintained as a class action; 2) providing that notice be senl by mail to class members' last knnwn addresses to be provided by the Defendants; 3) appointi ng attorneys, Jeremiah ladcvaia and Matthew Dorltnan of Vladeck, Raskin, & Clark, P.C:., as Class Counsel; and appointing Plaintiffa as the class representatives. Defendants liled opposition, and Plaintiffs filed a reply.

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Discussion Pursu,ml to CI'LR §CJIJJ , [o]ne or more members of a class may sue or be sued as representative pmties on behalf of' all, where the following live !actors are satisfied: l ) numerosity, 2) commonality, 3) typicality, 4) adequacy of representation, and 5) superiority." See, Cupka v. Rcmik /foldings llC, 202 A.0.3d 473 (Isl Dep't 2022). "The detem1ination of whether or not a matter qual ifies as a class action, after a review of the statutory criteria a~ applied to the facts at hand, rests within the sound discretion of the motion court... Rabouin v. Me1ro. life /11s. Co., 25 A. 0.3d 349 (I st Ocp't 2006). The party seeking class certification has the burden of establishing the prerequisites of CPI.R §90l(a). According LO CI'LR §90J(a){I), the individuals constituting the class must be so numerous that joinder of all members is impossible. CPLR §90l(a)(I) .

Al though "[t]hcrc is no mechanical test or set quantity of prospective class members to determine whether the class membership is so numerous as to make actual joinder impracticable, it has been held that the legislature contemplated classes involving as few as 18 members.'· See, ;'vfarcondes "· Fon 710 Assocs., LP.. 168 J\.Y.S.3d 812 (N.Y. Sup. Ct. 2022).

CPLR §CJ02 pertains lo an order allowing class action and states "[w]ithin six"!)' 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. An order under this section may be conditi onal and may be altered or amended before the decision on the merits on the court's O\\·n motion or on m(>tion of the parties. The ac tion may be maintained as a class action only if the court finds that the prerequisites under CPI.R §901 have been satisfied." See, CI'LR §902.

In support of the motion. Plaintiff Bago submitted his own affidavit wherein he attests, inter alia, that prior to 20 I9, the De lend ants classified him as an independent contractor rather than as an employee. Mr. Bago attests that the Defendants also classified all other servers as independent contractors rather than employees. Mr. Bago asserts that during his time working for Defendants, all the servers were compensated at the tipped minimum wage rate as opposed to the lull minimum wage rate. Mr. Bago auests that the Defendants paid him less than the non-tipped minimum wage rate. Mr. Bagu also claims that the Defendants instituted and maintained a "tip pooling policy," which means that the Derendants collected the tips received by the servers and then redistributed the tips according to an unspecified lilm1ula. Mr. 13ago asserts that the Defendant provided menus, which stated that a'·]?% gratuity and 5% administrative fee will be added'' to each customer's bill, however the Defendants retained a significant part or the 17% gratuity rather

15364412023 SAGO, ANORAS ET AL vs. LA BROCHETTE. INC. ET AL Pago 2 of& Motion No. 003

[* 2] 2 of 6 INDEX NO. 153644/2023 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 04/29/2025 than distributing the entirely of the gran1 ity among the Class members." (See, NYSCEF Doc. No. 65). In addition, Mr. Bago attests that the Defendants did not provide him wit h "spread ol' ht>urs pay'' when there was more than IO hours between the begirn1ing o f hi s lirst shift and the end of his last shift. Id. In support or the motion. Plaintiff Gerea also submined his 0\\'11 affidavit, wherein he attests, inter a/ia, that he worked as a full-time tipped employee for Defendants from December 2017 until January 2020, however prior to early 2019, the Defendants classilied him as an independent contractor rather than as an employee. Mr. (ierea asserts he worked more than one shi ft which exceeded 10 hours. Mr. Gerea attests that the Defendants never provided him with .. written notice or the tip credit amoun t that Defendants were claimi ng on his wages, and in 2019 Defendants insti tuted and maintained a ti p pooling policy where Defendants collected the tips received by the Servers and redistributed the tips according to an unspecified fonnula[. j" Mr. Gerca also ancsts that the Defendants' menus provided to customers stated that a 17% gratuity and 5% administrative fee will be added to each customer's bill, however Mr. Gerea claims that the Defendants retained a significant part of the 17% gratuity rather than distributing the gratuity among the Class members.

In opposition, the Delc:ndants submit, infer alia, the affidavi t /\ba Koiunov, who is the shareholder o lTa Brochette Inc. Delc:ndants argue that the Plaintiffs' assertions do not articulate an unlawful employment policy anributable to La Brochette . (See, NYSCEF Doc. No. 8./).

Defendant Koiunov refutes the plaintiff.~• assertions that they worked as servers since at La Brochette there arc few fom1al job titles. Defendant Koiunov claims that La Brochette is a small restaurant that serves Kosher fi)od in Manhattan, with 121 seats and has no more than 17 employees during the year. Defendant Koiunov claims that the Plaintiffs proffer no evidence that Defendants withheld tips from the servers with respect to catered events or banquets. Id. Defendants also argue the Plaintiffs' motion for class certilication should be denied because they have failed to establish the criteria for class certification pursuant to CPLR § 901.

DefcndanL~ assen that Plaintiffs have failed to identify any unlawful labor policy regarding tip pooling and failed to demonstrate any company-wide policy or practice that existed at La Urochette during their employment. Defendants argue that the Plaintiffs failed to detail any conversation with any putative class members concerni ng this alleged tip scheme. In addition, Defendants argue the purpmted class s ize is not so numerous as to make joinder impracticable since Plaintiffs have failed 15364412023 BAGO, ANDRAS ET AL vs. LA BROCHETTE, INC. ET AL Page 3 of 6 Motion No. 003

[* 3] 3 of 6 INDEX NO. 153644/2023 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 04/29/2025 to identify any other specific employees in the purported ela~s who share their individualized complaint regarding the alleged unlawful tip-pooling. Defendants argue that Plaintiffs' motion for class ce1tification should be denied because Plaintiff Bago has asserted numerous individual claims thal would not be part of the putative class.

Furthennore, Defendants argue that Plaintiffs arc not adequate class representatives, and their claims are nm typical of the class. Defendants contends that Plaintiffs' failure to waive their liquidated damages claim renders them inadequate class representatives. Defendams argue that Plaintiffs lack personal knowledge of their employers· policies or practices. Lastly, Defendants argue class certification is not warranted in this action because Plainti ffs' counsel failed to submit a proposed class notice to the C:ou1t.

In reply, Plaintiffs argue, inter a/ia, that they an~ adequate class repre~enlatives for the entire class since lhere is no requirement that the named Plaintiffs must have worked for the Defendants throughout the entire class period. Plaintiffs further argue that the pursuit of liquidated damages docs not preclude class ccrtilication because under New York Labor I.aw, liquidated damages arc not a penalty, and Plaintiffs may waive liquidated damages at a later time.

Herc, the Plainti IT,:; and the poten tial class members, the unnamed servers from December 2017 to January 2020, have met their burden of demonstrating the perquisites for class action certification under CPLR §901 "nd Cf'LR §902. "The State's rules on class actions, like their federal counterparts, "favor the maintenance of class actions" and support '·a liberal intelJlretation." Jfarcondes v. Fort 710 A.~.w,cs.. L./'.. 168 N.Y.S.3d 812 (N.Y. Sup. Ct. 2022). A class actkm "may, as a practical mancr. be the only available method for the detem1ination of the issues raised." Pruit/ v. Rocke/idler Ctr. Properties. Inc.. 167 A.0.2d 14 (1st Dcp't 1991).

This Court finds that the Plaintiffs established numerosi ty. Plaintiffs argue that on May 31, 2024, Defendants produced supplemental interrogatory responses wherein Defendants stated that individuals meet Plainti Ifs· proposed class definition. (See. NYSCEF Doc. No. i8. Exhibit J0).

Plaintiffs' assen that the individual joinder of all class members would be especially impractic.able, therefore, u class action is the superior vehicle for restilving this prevailing wage dispute.

Defendants, in their opposition. argued that there were never more than 17 employees duri ng the year, which satisfies the numerosity requirement. (See, NYSCEF Doc. No.84) : Marcondes v. Fort i/0 Assoc:s.. l.. l'.. 168 N.Y.S.3d 812 (N.Y. Sup. Ct. 2022). In addition, the Plaintiffs have demonstrated that the potential damages suffered by an individual class member are likely to be 153644/2023 SAGO, ANDRAS ET AL v,. LA BROCHETTE, INC. ET AL Page4of6 Motion No. 00J

[* 4] 4 of 6 INDEX NO. 153644/2023 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 04/29/2025 insignificant and that the cost of prosecuting individual actions would result in the class members having no realistic day in court. See, Chua v. Trim-Line Hitech Constr. Corp., 225 A.D.3d 565 ( I st Dep' t 2024). Herc, based on Mr. 13ago's and Mr. Gerea 's asscrti1)n thaL they were not paid an employee wage, and for their alleged overtime work , if this Court were to consider the claims of the other 17 workers, the damages would be substantially greater than the damages asserted for the named Plaintiffs. Therefore, a class action is the proper meLhod to adjudicate Plaintiffs' claims .

This Court finds that the PlaintiOs satisfied commonality and typicality prongs under Cl'LR §901. In their initial motion for class certification by submission of Mr. Bago and Mr. Gerea's affidavits and the redacted time and pay records of other putative class members for select pay periods. (See, NYSC!:Y Doc. Nos. 65-66, 79, N6). A class ,1ction is the superior vehicle for reso lving this prevailing wage dispule. See, Chua v. 'li-im-Une Hitech Con.vtr. Cmp.. 225 A.D .3d 565 ( I st Dep 't 2024). The Plaintiffs have submitted their redacted pay records, which were also submitted to Defendants' servers, and purported class members. These records demonstrnte that the putative class members. servers, have allegedly suffered damages in amounts insufficient to justify individual acLi ons, and the scrveri; received similar pay rates and indcpcndeni contr.1ctor job classifications. (.\"ee. N }~5CEF Doc. No. 80 and 86).

This Court further finds that the Plaintiffs' attorneys, Jeremiah Iadevaia and Mallhew Dorfman of Vladcck, Rask in, & Clark, P.C., as Class Counsels are adequate representatives for the putative class. Plaintiffs' attorneys explain their backgrounds. and atlests tbat they have significant experience handling and leading complex commercial and class action litigations. (See.

NYSCEF Doc No.68). There is nn evidence that plainti ffa or Iheir counsels lack the financial means to prosecute this case, or that the Plaintiffs may have conflicts with other putative class members.

As such, the Plai ntiffs' motion purs uant to CPLR §901 and §902 certifying that this matter may be maintained as a class action is granted.

Accordingly, it is hereby ORDERF.D that this action is certified a~ a class action pursuant to CPLR Arlicle 9 on behalf of Plaintiff:~ Andras 13ago and Alexandro Gerea and the putative New York class is GRANTED; and it is further ORDE RED that Plaintiffs Andras Bago and Alexandru Gcrca are appointed as lead Plaintiffs and class represcntati ves; and it is further ORDERED that the Law Firm ofYladeck, Raski n, & Clark, P.C is appointed as counsel for the class; and it is further 1536«12023 SAGO. ANDRAS ET AL vs. LA BROCHETTE, INC. ET AL Pago S of 6 Motion No. 003

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ORDERED that De l'endm1ts La 13rochette, Inc. and Aba Koiunov shall provide the names and contact information of Lhe class members inchtding email addresses, if available; and it is further ORDERED that the proposed notice be distri buted lo the class members by first class mail; and it is funher ORDERED that any requested relief sought not expressly addressed herein has nonetheless been considered.

Thi s consLi lutes the Decision and Order of the Court.

4/29/2025 DATE -le. 1 ~ l'<1 LISA S. HEADLEY, J.S.C.

§ CHECK ONE: CA SE DISPOSED NOH.,INAL OISPOSITION

APPLICATION: GRANTfO □ DENIED GRANTED IN PART D OTHER SETTLf ORDER SUBMIT ORDER CHfCK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE

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