Reyes et al v. City of Rye et al

Filing 117

OPINION & ORDER re: 108 MOTION to Certify Class Plaintiffs' Motion for Class Action Certification, filed by Benigno Peralta, Jr., Edison Aguirre, Bencher Montebon, Israel Cortes Cruz, Arniel Gomez, Rvin Reyes, Gerry Roxas, Sheridame Garcia, Aires Bayaborda. Plaintiffs' motion for class certification, appointment of class counsel, and provision of notice to the class is GRANTED and this Court ORDERS: The Unpaid Wage Class of "all waiters, bussers/runners, bartenders, dishwashers, kitchen staff, and all other hourly employees who worked for City of Rye, Rye Golf Club, and/or RM Staffing & Events, Inc. at any time from December 23, 2007 through the present" who allegedly have, under NYLL, u npaid overtime wages, unpaid spread-of-hours wages, and unreimbursed business expenses, and who allegedly did not receive wage notices that complied with NYLL is hereby certified; The Unpaid Tips Subclass of customer-facing employees, specifically "all waiters, bussers/runners, and bartenders who worked for City of Rye, Rye Golf Club, and/or RM Staffing & Events, Inc. at any time from December 23, 2007 through the present" who have allegedly had gratuities withheld in contraventi on of either NYLL or New York common law under theories of breach of contract, quantum meruit, unjust enrichment, and conversion is hereby certified; Named Plaintiffs Rvin Reyes, Israel Cortes Cruz, Edison Aguirre, Benigno Peralta, Jr., Gerry Roxas , Aries Beltran Bayaborda, Bencher Montebon, Arniel Gomez, and Sheridame Garcia are appointed as class representatives for the Unpaid Wage Class and Unpaid Tips Subclass; Pelton Graham LLC is appointed as class counsel; On or before August 29, 2016, Defendants shall provide to Plaintiffs the names, addresses, phone numbers, and email addresses of all potential plaintiffs, as defined in paragraph 1 above, in both paper form and digitally in Microsoft Word or Microsoft Excel format; The class ac tion notice, entitled NOTICE OF PENDENCY OF CLASS ACTION ("Notice"), attached to the Declaration of Brent E. Pelton, Esq. as Exhibit 9 is hereby approved for mailing to potential class members, providing class members (30) days to opt-out of the class; Plaintiffs shall mail the Notice to all potential plaintiffs no later than ten (10) days following Defendants' disclosure of the contact information for the potential class members; Defendants shall post in their Rye Golf Club l ocation the Notice, immediately upon receipt thereof, in a conspicuous location visible to all potential class members, and Defendants shall make copies of the Notice available to such potential class members; and To opt-out of this action, a pote ntial class member must send a written request which is postmarked, faxed, or emailed to class counsel no later than thirty (30) days after the date of the mailing of the Notice. At the conclusion of the opt-out period, class counsel shall promptl y file with the Court a list of all potential class members who opted-out, attaching copies of their individual opt-out submissions. The parties are directed to appear for a pre-trial conference on November 18, 2016 at 10:30 a.m. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 108 and to reaudit the filing of Plaintiffs' Second Amended Complaint (ECF No. 95) to provide Plaintiffs the opportunity to correct the case caption. So Ordered. (Signed by Judge Nelson Stephen Roman on 7/28/2016) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RVIN REYES, ISRAEL CRUZ, EDISON
AGUIRRE, BENIGNO PERALTA JR., GERRY
ROXAS, ARIES BAYABO RDA, BENCHER
MONTEBON, ARNIEL GOMEZ and
SHERIDAME GARCIA, Individually And On
Behalf Of All Others Similarly Situated,
No. 13-cv-9051 (NSR)
Plaintiffs,
OPINION & ORDER
-againstCITY OF RYE, RYE GOLF CLUB, RM
STAFFING & EVENTS, INC. and SCOTT
Y ANDRASEVICH, Jointly and Severally,
Defendants.

NELSON S. ROMAN, United States District Judge
Plaintiffs Rvin Reyes, Israel Cortes Cruz, Edison Aguirre, Benigno Peralta, Jr., Gerry
Roxas, Aries Beltran Bayaborda, 1 Bencher Montebon, Arnie! Gomez, and Sheridame Garcia
("Named Plaintiffs") have made a Rule 23 motion for class ce1tification of the putative class's
New York Labor Law claims. Plaintiffs seek an order certifying one class of hourly employees
and a related subclass of tip-eligible employees, appointing Named Plaintiffs as class
representatives, appointing Named Plaintiffs' counsel as class counsel, approving the proposed
class notice, directing Defendants to furnish to Plaintiffs the names and contact information of all
members of the defined class, and authorizing notice to be issued to all persons similarly
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For the following reasons, Plaintiffs' motion is GRANTED.

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The Court respectfully directs the Clerk to correct the spelling of Mr. Bayaborda's name in the caption.

BACKGROUND
I.

Factual Background
Defendant Rye Golf Club is a 126-acre parcel owned and operated by Defendant City of

Rye (the “City”), a municipality located in Westchester County, New York. (Second Am.
Compl. (“SAC”) ¶ 9, ECF No. 95.) 2 Rye Golf Club contains a number of recreation centers,
including a members-only golf course and a restaurant and catering facility called Whitby Castle
that is open to the public. (Aff. Joseph S. Fazzino Jr. in Opp’n to Pls. Mot. Class. Cert.
(“Fazzino Aff.”) ¶ 7, ECF No. 115; SAC ¶¶ 30-31.) The club operates as an “enterprise fund,”
meaning that the fees and charges (from, for example, membership dues or meals purchased by
patrons) paid by the public for the use of the various facilities are intended to cover all of the
club’s operating costs. (Fazzino Aff. ¶ 9.) The General Manager of the club from March 2002
until his resignation in January 2013 was Defendant Scott Yandrasevich. (Fazzino Aff. ¶ 13.)
From 2007 through January 2013, the club’s restaurant, catering, and bar facilities were staffed
by employees of Defendant RM Staffing & Events, Inc. (“RM Staffing”). (Fazzino Aff. ¶ 8.) In
2012 and 2013, the City of Rye investigated the relationship between Yandrasevich and RM
Staffing, eventually concluding they jointly perpetrated a scheme against the City and golf club
to fraudulently bill the City for a significant sum of money. (Fazzino Aff. ¶ 18.) Plaintiffs are
current and former restaurant and bar employees of the club. (SAC ¶¶ 40 (Rvin Reyes), 44
(Israel Cortes Cruz), 47 (Edison Aguirre), 49 (Sheridame Garcia), 51 (Benigno Peralta, Jr.), 53
(Gerry Roxas), 55 (Arniel Gomez), 58 (Aries Beltran Bayaborda), 61 (Bencher Montebon); Decl.

2

For purposes of deciding a Rule 23 motion for class certification, the allegations set forth in the complaint
are accepted as true. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978).

2

Brent E. Pelton, Esq. in Supp. of Pls. Mot. Class. Cert. (“Pelton Decl.”), ECF No. 109, Exs. 3, 4,
5, 6. 3)
On December 23, 2013, the Named Plaintiffs in this putative class action commenced this
action on behalf of themselves and all other similarly situated “wait staff, bartenders,
bussers/runners, kitchen staff, dishwashers,” and all other hourly employees who worked for
Defendants since December 20, 2007. (Compl., ECF No. 1; 4 SAC ¶¶ 2, 15, 18.) According to
Plaintiffs, Defendants 5 failed to pay the required overtime premiums for employees that worked
in excess of 40 hours per week; failed to pay the required additional hour’s wage when
employees worked shifts longer than 10 hours or a split shift, also referred to as “spread-ofhours” wages; required employees to pay their own uniform costs; withheld and confiscated tips,
gratuities, and service charges left by patrons; and failed to provide the required wage statements
and notices. (SAC ¶¶ 22, 26.)
Defendants City of Rye and Rye Golf Club (“Golf Club Defendants”) respond that during
the time period when RM Staffing was providing employees for the club, the City “believed that
it was rendering the full amount of these workers’ compensation” to RM Staffing, which was in
turn providing the compensation—including all owed gratuities—to the employees. (Fazzino
Aff. ¶ 16.) The Golf Club Defendants further explain that the usual payment flow entailed: the
City receiving funds paid to the club and depositing them into a City bank account; RM Staffing
providing Yandrasevich with invoices for the employees’ compensation; Yandrasevich
reviewing and approving the invoices; and then the City releasing payment to RM Staffing for

3

Exhibits 3-6 are Decls. in Supp. of Pls. Mot. for Cond. Class Cert. for Reyes (“Reyes Decl.”), Gomez
(“Gomez Decl.”), Bayaborda (“Bayaborda Decl.”), and Montebon (“Montebon Decl.”), respectively.
4
Plaintiffs amended their complaint on May 13, 2014, and again on February 3, 2015. (ECF Nos. 26
& 95.) The Second Amended Complaint (SAC) is the operative complaint in this action.
5
On May 22, 2014, former defendant Morris Yacht and Beach Club, Inc. was voluntarily dismissed from
the action without prejudice by stipulation between the parties. (Stip. of Dismissal, ECF No. 30.) On September 23,
2014, Plaintiffs sought to declare Defendant RM Staffing in default. (Req. to Enter Default, ECF No. 63.)

3

the employees. (Fazzino Aff. ¶ 15.) The invoices provided by RM Staffing to Yandrasevich and
the City organized owed compensation by employee, listing hours worked, overtime hours
worked, gratuities earned (until 2009 when hourly rates increased and this field was left blank),
and the hourly rates of compensation. (Fazzino Aff., Ex. 1.) Thus, the Golf Club Defendants
blame Defendants Yandrasevich and RM Staffing for any missing wages or compensation and
deny knowledge of any wrongdoing, specifically with regard to improperly withheld tips and
gratuities. (Fazzino Aff. ¶¶ 17, 21-22.)
II.

Procedural History
On August 8, 2014, the Court conditionally certified Plaintiffs’ Fair Labor Standards Act

(“FLSA”) claim as a collective action under 29 U.S.C. § 216(b). (Order, ECF No. 38.)
Discovery in this matter closed on September 22, 2015. Plaintiffs now move for class
certification of their New York Labor Law (“NYLL”) claims. (Pls. Mot. Class Cert., ECF
No. 108.) Defendants, rather than contesting class certification per the strictures of Federal Rule
of Civil Procedure 23, urge this Court to reject Plaintiffs’ motion as a moot procedural exercise,
arguing class certification of the NYLL claims would be futile as to the Golf Club Defendants
because as a municipality and a city-owned recreational facility they are not “employers” under
the NYLL and, therefore, immune from suit on those claims. (Defs. Mem. in Opp’n to Pls. Mot.
Class. Cert. (“Defs. Opp’n Mem.”) at 1, 5, 21, ECF No. 116.)
CLASS CERTIFICATION STANDARD
For a matter to proceed as a class action, a plaintiff must satisfy the four prerequisites of
numerosity, commonality, typicality, and adequacy, specifically demonstrating that: “(1) the
class is so numerous that joinder of all members is impracticable; (2) there are questions of law
or fact common to the class; (3) the claims or defenses of the representative parties are typical of

4

the claims or defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a). “In addition, while Rule 23(a) does not
expressly require that a class be definite in order to be certified, a requirement that there be an
identifiable class has been implied by the courts. This implied requirement is often referred to as
‘ascertainability.’” In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liability Litig., 209
F.R.D. 323, 336 (S.D.N.Y. 2002) (internal quotes and citations omitted). The party seeking class
certification bears the burden of satisfying Rule 23’s prerequisites by a preponderance of the
evidence. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196,
202 (2d Cir. 2008).
In addition to satisfying the Rule 23(a) prerequisites, the plaintiff must qualify the
proposed class under one of three subsection Rule 23(b) categories. Fed. R. Civ. P. 23(b); see
also Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010). Rule 23(b)(3)—the provision under
which Plaintiffs move (see Pls. Mem. in Supp. of Mot. Class. Cert. (“Pls. Mem.”) at 11, 17-24,
ECF No. 110)—is appropriate in cases in which common legal or factual issues predominate
over individual issues and where a class action is superior to other methods of adjudication. Fed.
R. Civ. P. 23(b)(3). Plaintiffs need not prove, however, that the legal or factual issues that
predominate will be answered in their favor. Amgen Inc. v. Connecticut Retirement Plans and
Trust Funds, 133 S. Ct. 1184, 1196 (2013).
A certifying court “must receive enough evidence, by affidavits, documents, or
testimony, to be satisfied that each Rule 23 requirement has been met.” Shahriar v. Smith &
Wollensky Rest. Grp., Inc., 659 F.3d 234, 251 (2d Cir. 2011) (citing In re IPO Secs. Litig., 471
F.3d 24, 41 (2d Cir. 2006)). Although “a court’s class-certification analysis must be ‘rigorous’
and may ‘entail some overlap with the merits of the plaintiff’s underlying claim,’ Rule 23 grants

5

courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen,
133 S. Ct. at 1194-95 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). The
court must resolve any factual disputes relevant to satisfying each Rule 23 requirement, but
“should not assess any aspect of the merits unrelated to a Rule 23 requirement.” In re IPO Secs.
Litig., 471 F.3d at 41 (emphasis added). A district court may later decertify a previously
certified class if it becomes apparent that the requirements of Rule 23 are, in fact, not met. See
Fed. R. Civ. P. 23(c)(1)(C).
After certifying a class, the Court “must define the class and the class claims, issues, or
defenses, and must appoint class counsel,” considering the work counsel applying for
appointment has already done in the action, counsel’s relevant experience and knowledge of the
applicable law, and the resources that counsel plans to dedicate to the action. See Fed. R. Civ. P.
23(c)(1)(B) & 23(g)(1)(A). “Class counsel must fairly and adequately represent the interests of
the class.” Fed. R. Civ. P. 23(g)(4).
If a class action is certified under Rule 23(b)(3)—as Plaintiffs’ have requested in this
action—the court “must direct to class members the best notice that is practicable under the
circumstances, including individual notice to all members who can be identified through
reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).
DISCUSSION
This Court has jurisdiction over Plaintiffs’ NYLL claims pursuant to 28 U.S.C. § 1367.
Although only the claims relating to unpaid overtime wages (Counts I & II of the Second
Amended Complaint) relate to both the FLSA and NYLL, the remaining claims alleging
violations of the NYLL or New York common law (Counts III – X) arise from a common
nucleus of operative facts shared with the Plaintiffs’ FLSA claim, namely the compensation

6

policies and practices of the Defendants. For this reason, exercise of supplemental jurisdiction
over these claims is appropriate. Shahriar, 659 F.3d at 244-45 (“plaintiffs frequently bring
[FLSA and NYLL] claims together in a single action using the procedural mechanisms available
under . . . Rule 23 to pursue the NYLL claims as a class action under the district court’s
supplemental jurisdiction”). The Golf Club Defendants request that this Court consider their
opposition as a motion to dismiss these claims on the basis of futility. (Defs. Opp’n Mem. at 1
n.1.) They argue that Plaintiffs’ state claims must eventually fail, because Defendants are
exempt from NYLL and the common-law causes of action are either without merit or constitute
an “end run” around the NYLL exemption, which in turn makes class certification futile. (See
generally Defs. Opp’n Mem.) The Court declines their invitation to consider the merits of that
defense at this juncture. 6
I.

Class Certification
Plaintiffs move for certification of: (1) a class of “all waiters, bussers/runners, bartenders,

dishwashers, kitchen staff, and all other hourly employees who worked for City of Rye, Rye Golf
Club, and/or RM Staffing & Events, Inc. at any time from December 23, 2007 through the
present” who allegedly have, under NYLL, unpaid overtime wages, unpaid spread-of-hours
wages, and unreimbursed business expenses, and who allegedly did not receive wage notices that
complied with NYLL (the “Unpaid Wage Class”); and (2) a subclass of customer-facing
employees, specifically “all waiters, bussers/runners, and bartenders who worked for City of
Rye, Rye Golf Club, and/or RM Staffing & Events, Inc. at any time from December 23, 2007

6
Defendants City of Rye and the Rye Golf Club have not requested a pre-motion conference on the issue of
dismissing the state law claims on the bases now argued in their opposition to Plaintiffs’ motion for class
certification. See Individual Practices, Rule 3.A.ii. Moreover, such merits inquiries are inappropriate at the class
certification stage. Amgen, 133 S. Ct. at 1194-95. Therefore, neither the question of whether the City and its
wholly-owned golf club are exempt from the NYLL claims nor the Golf Club Defendants’ arguments against
Plaintiffs’ New York common law claims are properly before the Court.

7

through the present” who have allegedly had gratuities withheld in contravention of either NYLL
or New York common law under theories of breach of contract, quantum meruit, unjust
enrichment, and conversion (the “Unpaid Tips Subclass”). (See Pls. Mem. at 1, 11.)
a. Rule 23(a) Prerequisites
i. Numerosity—Rule 23(a)(1)—and Implied Requirement of Ascertainability
Under Rule 23(a)(1), numerosity is presumed where a putative class has 40 or more
members. Shahriar, 659 F.3d at 252. Plaintiffs assert—and Defendants do not dispute—that
records provided show at least 228 individuals in hourly positions were employed during the
class period. (Pls. Mem. at 12.) As for the subclass, Plaintiffs assert, again without opposition,
that “most of the individuals” on the list provided, including all Named Plaintiffs and “most of
the 50 opt-in plaintiffs,” were tipped employees. (Id.) Courts often find numerosity of a
proposed class on the basis of undisputed representations. Shahriar, 659 F.3d at 252; Ramirez v.
Riverbay Corp., 39 F. Supp. 3d 354, 362 (S.D.N.Y. 2014) (numerosity satisfied on the basis of
undisputed representations that the class was more than 40 members). Therefore, numerosity is
satisfied for the Unpaid Wage Class and the Unpaid Tips Subclass.
Similarly, these records also provide the necessary information to make both the class
and subclass ascertainable. “An identifiable class exists if its members can be ascertained by
reference to objective criteria.” MTBE Prods., 209 F.R.D. at 336. Because Plaintiffs can
identify the class and subclass by reviewing Defendants’ payroll records, this Court concludes
that the implied ascertainability requirement of Rule 23 is met.
ii. Commonality—Rule 23(a)(2)
“Commonality requires the plaintiff to demonstrate that the class members ‘have suffered
the same injury.’” Wal-Mart, 564 U.S. at 349-50 (citing General Telephone Co. of Southwest v.

8

Falcon, 457 U.S. 147, 157 (1982)). “What matters to class certification . . . is not the raising of
common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Id.; see also Jacob v.
Duane Reade, Inc., 602 F. App’x 3, 6 (2d Cir. 2015).
Plaintiffs identify four factual questions common to both classes: whether Defendants
(1) had a policy of not paying wages at an overtime rate after an employee worked over 40 hours
in a given work week; (2) had a policy of not paying spread-of-hours pay when an employee
worked over 10 hours in a given day; (3) had a policy of failing to reimburse hourly employees
for uniform maintenance costs; and (4) had a policy of failing to provide its hourly employees
with wage notices. (Pls. Mem. at 14.) Similarly, Plaintiffs correctly assert that the common
legal question of whether these practices were illegal under the NYLL and New York common
law applies to both classes. (Id. at 14.) And, as Defendants note, this includes the question of
whether the Golf Club Defendants can be considered “employers” under the NYLL. (Defs.
Opp’n Mem. at 3-5; see also Pls. Reply Mem. in Further Supp. of Pls. Mot. for Class Cert. (“Pls.
Reply Mem.”) at 1 (“Defendants’ ‘futility’ defense indisputably presents a common question
capable of class-wide resolution”).) Plaintiffs also recognize that “the entire case with respect to
[the Unpaid Tips Subclass] boils down to the straight-forward legal question [of] whether
Defendants’ common policy of retaining the gratuities left by patrons is unlawful.” (Pls. Mem.
at 13.)
While Defendants do not make any arguments to the contrary, this Court, conducting the
necessary “rigorous” analysis of Plaintiffs’ claims, recognizes that in addition to the factual
policy questions above, there may be certain factual distinctions between individual class
members. For example, some employees may not have worked overtime or may not have had to

9

purchase or maintain uniforms. These distinctions, however, relate to the individual damage
calculations for members of the class and subclass. See Jacob, 602 F. App’x at 7 (in the related
but more stringent predominance inquiry, the requirement can be satisfied as to questions of
liability irrespective of the individualized damages inquires). “[B]ecause commonality does not
mean that all issues must be identical as to each member, the need for an individualized
determination of damages suffered by each class member generally does not defeat the
requirement.” Padilla v. Maersk Line, Ltd., 271 F.R.D. 444, 448 (S.D.N.Y. 2010) (internal
quotation marks and citations omitted); see also Poplawski v. Metroplex on the Atl., LLC, No. 11
Civ. 3765 (JBW), 2012 WL 1107711, at *8 (E.D.N.Y. Apr. 2, 2012) (“While damages owed to
each employee will require individual determinations, this computation issue does not destroy
commonality.”). And, Defendants’ payroll records should aide in those eventual calculations.
Thus, answers to the common policy and legal questions undoubtedly will “drive the
resolution of the litigation” with respect to all parties. Wal-Mart, 564 U.S. at 349-50; Shahriar,
659 F.3d at 252 (commonality requirement satisfied where “Plaintiffs’ NYLL class claims all
derive from the same compensation policies and tipping practices”). This satisfies the
commonality requirement.
iii. Typicality—Rule 23(a)(3)
Typicality “requires that the claims of the class representatives be typical of those of the
class.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care.
L.L.C., 504 F.3d 229, 245 (2d Cir. 2007) (internal quotation marks and citation omitted). This
requirement is satisfied “when each class member’s claim arises from the same course of events,
and each class member makes similar legal arguments to prove the defendant’s liability.”
Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). “When it is alleged that the same

10

unlawful conduct was directed at or affected both the named plaintiff[s] and the class sought to
be represented, the typicality requirement is usually met irrespective of minor variations in the
fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir.
1993) (citations omitted).
The undisputed allegations here are that all putative class members were subject to the
same policies—whether part of the Unpaid Wage Class or Unpaid Tips Subclass. Four of the
Named Plaintiffs have provided declarations in support of class certification demonstrating that,
for at least some period of time within the class period, they were subjected to all of the allegedly
unlawful compensation practices. For example, Named Plaintiff Rvin Reyes alleges he was
employed from March 2010 through December 2013 (Reyes Decl. ¶ 1), was not paid overtime
throughout that period (¶¶ 4-5), was forced to hand over all cash tips to his employer and never
received gratuities left by patrons up through March 2013 (¶ 7), was never paid spread-of-hours
wages (¶ 8), was not reimbursed for his uniform maintenance costs (¶ 9), and did not receive
wage notices (¶¶ 10-11). For different periods of time, the same is also alleged by the other three
Named Plaintiffs who provided declarations. (See Gomez Decl. ¶¶ 1, 4-5, 7-11; Bayaborda Decl.
¶¶ 1, 4-5, 7-11; Montebon Decl. ¶¶ 1, 4-5, 7-11.) And, based on the allegations in the complaint,
the other five Named Plaintiffs have similarly been subjected to these policies. (See SAC ¶¶ 4446 (Cruz); ¶¶ 47-48, 69 (Aguirre); ¶¶ 49-50 (Garcia); ¶¶ 51-52 (Peralta); ¶¶ 53-54 (Roxas); ¶¶
66, 71-72, 75, 80 (all employees).)
Thus, the typicality requirement is satisfied by the record before this Court. See
Shahriar, 659 F.3d at 252 (finding typicality satisfied where class members “were subject to the
same tipping policies”).

11

iv. Adequacy—Rule 23(a)(4)
In order to justify a departure from “the usual rule that litigation is conducted by and on
behalf of the individual named parties only,” Califano v. Yamasaki, 442 U.S. 682, 700-01
(1979), “a class representative must be part of the class and possess the same interest and suffer
the same injury as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431
U.S. 395, 403 (1977) (internal quotation and citation omitted). As such, Rule 23(a)(4) requires
that class representatives “fairly and adequately protect the interests of the class.” Fed. R. Civ.
P. 23(a)(4). Where the “class representatives are prepared to prosecute fully the action and have
no known conflicts with any class member,” the adequacy requirements are met. Shahriar, 659
F.3d at 253.
Here, between the allegations in the Second Amended Complaint and the declarations
furnished by Plaintiffs’ counsel, sufficient evidence is present to determine that the Named
Plaintiffs are fully prepared to act as class representatives and prosecute the case, have no
conflict with any class members, and will fairly and adequately protect the interests of the class
and subclass. The Named Plaintiffs were or are all hourly employees that were or are also tipped
employees. (SAC ¶¶ 40-63 (waiters, waitresses, or bartenders).) Given that the Named
Plaintiffs are all members of the Unpaid Tips Subclass, there is no risk that the interests of the
subclass will be marginalized by these class representatives, or that the claims involving
gratuities would be less important to them than the more general overtime and spread-of-hours
claims. See also Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 158 (S.D.N.Y. 2008) (“The
fact that plaintiffs’ claims are typical of the class is strong evidence that their interests are not
antagonistic to those of the class; the same strategies that will vindicate plaintiffs’ claims will
vindicate those of the class.”). The adequacy requirement is, therefore, met.

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b. Rule 23(b)(3) Requirements
As the Rule 23(a) prerequisites have been met, this Court must determine if common
legal or factual issues predominate over individual issues and if a class action is superior to other
methods of adjudication. Fed. R. Civ. P. 23(b)(3). The factors to be considered during this
analysis include: the class members’ interests in joint rather than individual actions, the extent of
litigation concerning the controversy already begun by class members, the desirability of the
class forum, and any difficulties in managing the class action. Fed. R. Civ. P. 23(b)(3)(A-D).
i. Predominance
In Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002), the Second Circuit
explained the predominance requirement of Rule 23(b)(3) as follows:
“The Rule 23(b)(3) predominance inquiry tests whether proposed
classes are sufficiently cohesive to warrant adjudication by
representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623
(1997). It is a more demanding criterion than the commonality
inquiry under Rule 23(a). Id. at 623–24. Class-wide issues
predominate if resolution of some of the legal or factual questions
that qualify each class member’s case as a genuine controversy can
be achieved through generalized proof, and if these particular issues
are more substantial than the issues subject only to individualized
proof. In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d
124, 136 (2d Cir. 2001).
Plaintiffs assert that all members of the Unpaid Wage Class and Unpaid Tips Subclass
were subject to the same general employment scheme and payroll practices. (Pls. Mem. at 15.)
In objection, the Golf Club Defendants refer to Plaintiffs’ allegations in the Second Amended
Complaint against another defendant, Morris Yacht and Beach Club, Inc., to argue that Plaintiffs
are ignoring the need for two separate classes of plaintiffs—those who performed work for the
golf club and those who performed work for the yacht club—in order to determine which
employees did no work for one or the other Defendant facilities. (Defs. Opp’n Mem. at 4 n.2.)

13

But, as Plaintiffs aptly note and as discussed above, supra n.5, Morris Yacht and Beach Club,
Inc., has been dismissed from this action. (Pls. Reply Mem. at 1 n.1.) Therefore, should a
member of the class have worked for Defendant RM Staffing but never performed any work for
the Golf Club Defendants, this issue will be resolved when allocating damages between the
Defendants. Defendants do not address Plaintiffs’ other arguments in favor of predominance.
As discussed in the preceding commonality analysis, Plaintiffs’ allegations center on the
Golf Club Defendants’ and RM Staffing’s commonly applied employment policies and practices.
(See Pls. Mem. at 17-20.) But, in order to satisfy the more exacting predominance requirement,
these common questions of law and fact must additionally be resolvable “through generalized
proof” and be “more substantial than the issues subject only to individualized proof.” In re Visa
Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001). District courts “have
routinely found that common questions predominate in wage and hour actions brought on behalf
of a class of employees of the same employer challenging allegedly illegal policies and
practices.” Murphy v. LaJaunie, No. 13 Civ. 6503 (RJS), 2015 WL 4528140, at *7 (S.D.N.Y.
July 24, 2015) (collecting cases). This case is no different.
Generalized proof of the Defendants’ policies and practices will resolve the common
questions in this action—in short, whether Defendants violated the FLSA and/or NYLL by
withholding or failing to provide overtime wages, spread-of-hour wages, uniform maintenance
costs, wages notices, and potentially earned gratuities—and provide evidence of the breadth of
the alleged problem. See, e.g., Shahriar, 659 F.3d at 253 (where Defendants did not deny that all
class members were subject to the same tip-polling practices, and Plaintiffs provided support that
all class members were subject to such practices, the predominance requirement was satisfied).
Defendants have not denied that all hourly employees were subject to the same compensation

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practices, and Plaintiffs support their allegations with their submission of deposition testimony
from City or golf club employees and declarations from several Named Plaintiffs as part of their
motion for class certification. (Pelton Decl., Ex. 2 (deposition testimony of golf club finance
employee supporting the allegation that hourly employees were not paid overtime); Pelton Decl.,
Ex. 1 (deposition testimony of Deputy City Controller supporting the allegation that gratuities
were withheld); Reyes Decl. ¶ 8 (spread-of-hour wages were not paid), ¶ 9 (uniform maintenance
costs were not provided), ¶ 10-11 (wages notices were not given); see also Gomez Decl. (same);
Bayaborda Decl. (same); Montebon Decl. (same).) The potential plenary defenses available to
the Golf Club Defendants do not affect the generalized nature of Plaintiffs’ policy and practice
allegations and do not impact the predominance analysis, as Plaintiffs need not prove that
common legal issues will be answered in their favor, and the Court should not engage in such
merits inquiries at the class certification stage. Amgen, 133 S. Ct. at 1194-96; Myers v. Hertz
Corp., 624 F.3d 537, 549 (2d Cir. 2010) (“[C]ourts in this Circuit have certified classes on state
law claims that turn on the question of FLSA exemption for a particular group of employees.”).
Turning to the question of whether the issues subject to generalized proof outweigh those
subject to individualized proof, the only issues potentially subject to individualized proof are
individual damages. But, “proponents of class certification [need not] rely upon a classwide
damages model to demonstrate predominance.” Roach v. T.L. Cannon Corp., 778 F.3d 401, 407
(2d Cir. 2015); see, e.g., Johnson v. Wave Comm GR LLC, 4 F. Supp. 3d 453, 460, 462
(N.D.N.Y. 2014) (when considering defendants’ available defenses in combined FLSA and
NYLL action, court held that “where individualized inquiries into damages may be necessary,
Rule 23(b)(3) does not preclude class certification when common questions regarding liability
predominate,” particularly when employees “worked in the same office, were compensated

15

under the same payment plans, and allege that they were subjected to unified policies which
violated the FLSA and NYLL”); Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 126 (S.D.N.Y.
2014) (finding that the damages calculations for tips that were allegedly unlawfully retained and
distributed was a “straightforward, mechanical process”). Plaintiffs indicate, and Defendants do
not dispute, that “damages for the [Unpaid Wage Class] can be calculated to a large extent from
the payroll records themselves[.]” (Pl. Mem. at 20.) Plaintiffs also assert damages for the
Unpaid Tips Subclass could be determined by generalized proof “based on the Defendants’
records of the food and beverage revenues and reasonable inferences drawn from those records.”
(Id.) Moreover, the sample invoice sheets provided by the Golf Club Defendants in opposition
to class certification, originally provided by RM Staffing to the golf club, list hours worked,
overtime hours, rates, and gratuities collected—making damages calculations potentially simple
for both the Unpaid Wage Class and Unpaid Tips Subclass if these aspects of the invoices are
shown to be reliable. 7 (Fazzino Aff., Ex. 1.)
Therefore, the Court finds that common questions predominate.
ii. Superiority
To proceed under Rule 23(b)(3), common questions must not only predominate, but a
class action must also be “superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). Plaintiffs assert, and Defendants do not
deny, that for many potential class members “the amount of damages at issue is not large enough
to make individual actions feasible.” (Pls. Mem. at 22.) Where the damages suffered by

7

The Court recognizes that the alleged falsification of these invoices is precisely what resulted in
Defendant Yandrasevich’s related guilty plea and agreement to repay the City of Rye any monies fraudulently paid
to RM Staffing. (See Fazzino Aff. ¶ 19, 22.) Nevertheless, the Golf Club Defendants do not contest that throughout
the period when RM Staffing provided the personnel for the club (2007-2013) the hours worked, as listed on
invoices, is accurate. Nor do they contest the gratuities listed on the pre-2009 invoices. They only contest
potentially inflated hourly rates listed on the invoices beginning in 2009, which leaves open the possibility that the
other categories of information will prove reliable and, thus, useful in calculating individual damages.

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individual class members are small in comparison to the expense and burden of litigation, courts
routinely find that a class action is superior to individual litigation. See, e.g., Torres v.
Gristede’s Operating Corp., No. 04 Civ. 3316 (PAC), 2006 WL 2819730, at *16 (S.D.N.Y. Sept.
29, 2006) (citations omitted) (“Because litigation costs would likely exceed any gains from
overtime wage recovery, class members would be unlikely to litigate individually . . . . In
addition, since some class members are still [defendants’] employees . . . , class members may
fear reprisal and would not be inclined to pursue individual claims.”). Plaintiffs also make the
unrefuted assertions that “many of [the proposed class members] are immigrants who may lack
familiarity with the American legal system” and “many of the putative class members are current
employees of Defendants” (Pls. Mem. at 22)—both of which also favor a finding of superiority.
These considerations weigh in favor of finding that class members’ interests would best
be served by a joint action and that managing the class would entail minimal difficulty. This
Court is not aware of any other litigation concerning this controversy, and can find no reason
why this forum is less desirable than any alternative. In fact, Plaintiffs properly point out that
this forum is particularly superior “because the claims of the class members all arise in the
Southern District of New York.” (Pls. Mem. at 23.) Furthermore, FLSA and NYLL class claims
should be tried together “because it allows for a more cost-efficient and fair litigation of common
disputes.” Damassia, 250 F.R.D. at 164.
Therefore, a class action is the superior method of resolving this case.
*

*

*

There is one disputed factual question which the Court must consider: the end of the class
period. Plaintiffs have requested a period starting December 23, 2007, and running through the
present. Defendants do not dispute the class period specifically, but the affidavit submitted along

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with their opposition to class certification notes that once the Golf Club Defendants “assumed
direct control over the Plaintiffs’ wages and compensation . . . the City and [Rye Golf Club] duly
paid all tip and gratuity compensation due to each Plaintiff.” (Fazzino Aff. ¶ 23.) This assertion
conflicts with the declarations provided by the four Named Plaintiffs. For example, Plaintiff
Reyes indicates he did not receive the tips and gratuities owed to him up from the beginning of
his employment through approximately March 2013, which correlates with the timeframe when
the golf club took over the employment practices and, according to Reyes, informed staff “it was
the policy of Rye Golf Club and the City of Rye not to pay overtime” since the employees were
now receiving tips. (Reyes Decl. ¶ 6.) But Reyes also alleges other employees “beginning in or
around March 2013 . . . were not paid tips” despite also working more than 40 hours in a given
week. (Id. ¶ 12 (emphasis added).) The other three declarations make the same allegations.
(See Gomez Decl. ¶¶ 6-7, 12; Bayaborda Decl. ¶¶ 6-7, 12; Montebon Decl. ¶¶ 6-7, 12.) On
balance, it appears that Plaintiffs have more compelling, and direct, evidence of the potential
duration of the alleged claims. As such, this Court resolves, but only for the purposes of
deciding the instant motion, this factual dispute in favor of Plaintiffs.
Because the Rule 23(a) and Rule 23(b)(3) requirements have been met, class certification
of the Unpaid Wage Class and Unpaid Tips Subclass is GRANTED and the class and subclass
are defined as discussed above. The claims applicable to the Unpaid Wage Class include Counts
II, III, V & VI of the Second Amended Complaint, while the claims applicable to the Unpaid
Tips Subclass include Counts IV & VII-X. The potential defense that the Golf Club Defendants
are not “employers” under the NYLL, along with any other available legal defenses to Plaintiffs’
claims, apply to both the class and subclass.

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II.

Appointment of Class Counsel
Plaintiffs request in their motion for class certification (Pls. Mem. at 1) that counsel for

the Named Plaintiffs be appointed as class counsel in the event this Court certified the Unpaid
Wage Class and Unpaid Tips Subclass. No other law firm is currently seeking appointment.
Plaintiffs have retained as counsel Pelton Graham LLC, 8 which has already identified and
investigated potential claims in this action, including taking all necessary discovery. Plaintiffs’
counsel is qualified and experienced in class action law and wage-and-employment litigation—
specifically “wage and hour cases” that are “hybrid Rule 23 class/FLSA collective actions.” (See
Pelton Decl.¶¶ 2-4, 6-7.) Counsel is also willing and able to commit the necessary resources to
represent the class and subclass. (Id. at ¶ 5.) Defendants do not challenge these assertions. Cf.
Kimber v. Tallon, 556 F. App’x 27, 28 (2d Cir. 2014) (abuse of court’s discretion not to weigh
the “significant considerations” of class counsel’s “lack of resources and its inexperience in
federal class actions”).
Thus, the Court finds that Pelton Graham LLC satisfies Rule 23(g)’s requirements and
APPOINTS it as class counsel.
III.

Notice to the Class and Subclass
Plaintiffs provide a proposed joint notice for the Unpaid Wage Class and Unpaid Tips

Subclass with their certification motion. (Pelton Decl., Ex. 9.) Defendants do not request any
revisions to the proposed notice. When this Court conditionally certified a collective action
under 29 U.S.C. § 216(b), notice was sent to employees based on the records provided by
Defendants and, based on that notice, 50 employees opted-in. Class actions under Rule 23 are
opt-out rather than opt-in, see Shahriar, 659 F.3d at 247, but Plaintiffs’ prior successful efforts in

8

During the pendency of this motion, Pelton & Associates, PC, appears to have been reconstituted as
Pelton Graham LLC.

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contacting at least 20 percent of the potential class and advising them of the FLSA action weighs
in favor of accepting their proposed notice and proposed method for contacting class members as
the “best notice that is practicable” in these circumstances. Fed. R. Civ. P. 23(c)(2)(B).
This Court finds that the proposed joint notice for the class and subclass, per the
requirements of Rule 23(c)(2)(B), “clearly and concisely,” in straightforward language, states
(1) the nature of the action; (2) the class definition; (3) the class claims, issues, or defenses;
(4) the ability of a class member to enter an appearance in the class action through an attorney;
(5) the ability to opt-out of the class; (6) the time and manner restrictions on doing so; and (7) the
binding nature of a class judgment on all individuals the Court finds to be members of the class,
who did not request to be excluded.
The Court, therefore, DIRECTS the approved notice be sent to all class members
identifiable through reasonable effort. The Court also directs Defendants to provide to Plaintiffs
the names, addresses, phone numbers, and email addresses of all potential plaintiffs in order to
effectuate such notice.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for class certification, appointment of class
counsel, and provision of notice to the class is GRANTED and this Court ORDERS:
1. The Unpaid Wage Class of “all waiters, bussers/runners, bartenders, dishwashers,
kitchen staff, and all other hourly employees who worked for City of Rye, Rye Golf
Club, and/or RM Staffing & Events, Inc. at any time from December 23, 2007
through the present” who allegedly have, under NYLL, unpaid overtime wages,
unpaid spread-of-hours wages, and unreimbursed business expenses, and who
allegedly did not receive wage notices that complied with NYLL is hereby certified;

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2. The Unpaid Tips Subclass of customer-facing employees, specifically “all waiters,
bussers/runners, and bartenders who worked for City of Rye, Rye Golf Club, and/or
RM Staffing & Events, Inc. at any time from December 23, 2007 through the present”
who have allegedly had gratuities withheld in contravention of either NYLL or New
York common law under theories of breach of contract, quantum meruit, unjust
enrichment, and conversion is hereby certified;
3. Named Plaintiffs Rvin Reyes, Israel Cortes Cruz, Edison Aguirre, Benigno Peralta,
Jr., Gerry Roxas, Aries Beltran Bayaborda, Bencher Montebon, Arniel Gomez, and
Sheridame Garcia are appointed as class representatives for the Unpaid Wage Class
and Unpaid Tips Subclass;
4. Pelton Graham LLC is appointed as class counsel;
5. On or before August 29, 2016, Defendants shall provide to Plaintiffs the names,
addresses, phone numbers, and email addresses of all potential plaintiffs, as defined
in paragraph 1 above, in both paper form and digitally in Microsoft Word or
Microsoft Excel format;
6. The class action notice, entitled NOTICE OF PENDENCY OF CLASS ACTION
(“Notice”), attached to the Declaration of Brent E. Pelton, Esq. as Exhibit 9 is hereby
approved for mailing to potential class members, providing class members (30) days
to opt-out of the class;
7. Plaintiffs shall mail the Notice to all potential plaintiffs no later than ten (10) days
following Defendants’ disclosure of the contact information for the potential class
members;

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8. Defendants shall post in their Rye Golf Club location the Notice, immediately upon
receipt thereof, in a conspicuous location visible to all potential class members, and
Defendants shall make copies of the Notice available to such potential class members;
and
9. To opt-out of this action, a potential class member must send a written request which
is postmarked, faxed, or emailed to class counsel no later than thirty (30) days after
the date of the mailing of the Notice. At the conclusion of the opt-out period, class
counsel shall promptly file with the Court a list of all potential class members who
opted-out, attaching copies of their individual opt-out submissions.
The parties are directed to appear for a pre-trial conference on November 18, 2016 at 10:30 a.m.
The Clerk of Court is respectfully directed to terminate the motion at ECF No. 108 and to reaudit the filing of Plaintiffs' Second Amended Complaint (ECF No. 95) to provide Plaintiffs the
opportunity to correct the case caption.

Dated:

July 7.8, 2016
White Plains, New York

SO ORDERED:

~

United States District Judge

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