The following e-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) 42-58 Opposing Affidavits (Affirmations) 62-75 Reply Affidavits (Affirmations) 81-84 Upon the foregoing papers in this action to recover wages and benefits, plaintiff Lyudmyla Konstantynovska, individually and on behalf of all other persons similarly situated who were employed by Friendly Home Care Inc., moves for an order: (1) certifying this action as a class action; (2) granting her leave to file an amended complaint; (3) designating Virginia & Ambinder, LLP, (V&A) as class action counsel; and (4) and approving the proposed Notice of Class Action Lawsuit and Publication Order for publication (Seq 2). Background The Class Action Complaint On April 14, 2017, plaintiff commenced this action on behalf of herself and a putative class consisting of “each and every person who is a citizen of the State of New York and who is or was employed by Defendant Friendly Home Care Inc. (FHC or defendant) to provide personal care, assistance, health-related tasks and other home care services to Defendant’s clients [at their residences] within the State of New York…from April 2011 up to the present (the ‘Putative Class’)” (complaint at
1, 7 and 10). Plaintiff seeks to “recover wages and benefits” to which she and the proposed class were “statutorily and contractually entitled to receive pursuant to New York Labor Law (‘NYLL’)…” (id. at 2). Specifically, the complaint seeks “minimum wages, overtime compensation, ‘spread of hours’ compensation, reimbursement for business expenses borne for the benefit and convenience of the [d]efendant, as well as damages arising from [d]efendant’s breach of contract…” (id. at 4). The complaint alleges that “[b]eginning in April 2011 and, upon information and belief, continuing through the present, [d]efendant has maintained a policy and practice of requiring [p]laintiffs to regularly work in excess of ten hours per day, without providing proper hourly compensation for all hours worked, or overtime compensation for all hours worked in excess of 40 hours a week in any given week, and ‘spread of hours’ compensation” (id. at 3). Regarding the Putative Class, the complaint alleges that: “[t]he Putative Class is so numerous that joinder of all members is impracticable. Although the precise number of such persons is presently unknown to Plaintiff’s, and calculation of such number would require facts in the sole control of Defendant, upon information and belief the size of the Putative Class is believed to be in excess of 100 individuals. In addition, the names of all potential members of the Putative Class are not known” (id. at 11). The complaint further alleges that: “The questions of law and fact common to the Putative Class predominate over any questions affecting only individual members. These questions of law and fact include, but are not limited to: (1) whether Defendant failed to pay the minimum wage for all hours worked; (2) whether Defendant failed to pay overtime wages, at the applicable overtime hourly rate, for all hours worked in excess of 40 hours in any given week; (3) whether Defendant failed to pay ‘spread of hours’ compensation; and, (4) whether Defendant failed to reimburse Plaintiff’s for business expenses borne for the benefit and convenience of the Defendant” (id. at 12). The complaint alleges that plaintiff’s individual claims are “typical to the claims of the class, because they are all current or former home health care employees of defendant, who sustained damages, including underpayment of wages as a result of defendant’s common compensation policies and practices” (id. at 13). The complaint also alleges that plaintiff and her counsel at V&A will “fairly and adequately protect the interests of the Putative Class” and that plaintiff’s counsel at V&A is “experienced in complex wage and hour class action litigation” (id. at 14). The complaint further alleges that “[a] class action is superior to other available methods for the fair and efficient adjudication of this controversy” because plaintiff and the Putative Class members “lack the financial resources to adequately prosecute separate lawsuits against Defendant[,]” and it will “ prevent unduly duplicative litigation resulting from inconsistent judgments pertaining to the Defendant’s policies” (id. at 15). Regarding the individual plaintiff, the complaint alleges that she was employed by FHC as a home attendant from approximately June 18, 2014 through January 1, 2015, during which time she provided “personal care services” to FHC’s “ailing elderly clients” including: “assistance with dressing, bathing and personal grooming, cooking, serving food and feeding, changing diapers, cleaning, such as mopping, cleaning bathrooms, doing laundry, and taking out garbage, escorting clients to the doctor, lifting and transferring Defendant’s clients from and to bed, wheelchair, toilet and etc., and walking clients outside in the wheelchair. (id. at
