Caitlin Ferrari, Alyssa U., Maria P. v. Nat'l Football League, Buffalo Bills, Inc.

• Decision Date: 29 September 2017
• Citation: 153 A.D.3d 1589,61 N.Y.S.3d 421
• Parties: Caitlin FERRARI, Alyssa U., Maria P., and Melissa M., on behalf of themselves and all others similarly situated, Plaintiffs–Respondents, v. The NATIONAL FOOTBALL LEAGUE, Buffalo Bills, Inc., Cumulus Radio Company, formerly known as Citadel Broadcasting Company, Defendants–Appellants, Stephanie Mateczun and Stejon Productions Corporation, Defendants.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1589

61 N.Y.S.3d 421

Caitlin FERRARI, Alyssa U., Maria P., and Melissa M., on behalf of themselves and all others similarly situated, Plaintiffs–Respondents,

v. The NATIONAL FOOTBALL LEAGUE, Buffalo Bills, Inc., Cumulus Radio Company, formerly known as Citadel Broadcasting Company, Defendants–Appellants,Stephanie Mateczun and Stejon Productions Corporation, Defendants.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 29, 2017.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Defendant–Appellant Buffalo Bills, Inc.

Bond, Schoeneck & King, PLLC, Syracuse (Louis Orbach of Counsel), for Defendant–Appellant Cumulus Radio Company, formerly known as Citadel Broadcasting Company.

Proskauer Rose LLP, New York City (Steven D. Hurd of Counsel), for Defendant–Appellant The National Football League.

The Marlborough Law Firm, P.C., Melville (Christopher Marlborough of Counsel), Dolce Panepinto, P.C., Buffalo, and Levi & Korsinsky, LLP, New York City, for Plaintiffs–Respondents.

PRESENT: SMITH, J.P., DeJOSEPH, CURRAN, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM:

The "Buffalo Jills" was the name of a cheerleading squad that performed at professional football games for defendant Buffalo Bills, Inc. (Buffalo Bills), and also participated in charity and promotional events in the community. Plaintiffs are four persons who were members of the Buffalo Jills for varying periods between 2009 and 2014. In November 2015, plaintiffs commenced this action, individually and on behalf of similarly situated persons, seeking to recover hundreds of hours of wages that allegedly were not paid to them. In their third amended and supplemental class action complaint (complaint), plaintiffs alleged, among other things, that they were deliberately misclassified as independent contractors rather than employees, and were made to sign similarly worded contracts misrepresenting them as such. The complaint asserts causes of action based upon, among other things, violations of the Labor Law and common-law fraud.

Plaintiffs subsequently moved for class certification. Each plaintiff submitted a reply affidavit in support of that motion. In those affidavits, each plaintiff averred that the members of the Buffalo Jills were not paid for performing at Buffalo Bills games or for any of the hundreds of hours of practice they engaged in. Furthermore, they were required to model for the annual Buffalo Jills swimsuit calendar and to sell a certain number of copies of the calendar, and they were not paid for those services either. They were also required to sell tickets to an annual golf tournament, instruct young girls at an annual cheerleading camp, and attend numerous promotional events for the Buffalo Bills and its sponsors. Plaintiffs further averred that they and the other members of the Buffalo Jills were paid for some of the promotional events, but not for anything else. Plaintiffs attached to their reply affidavits their contracts, which uniformly state that they were independent contractors and would be paid on a "per appearance" basis, but not for appearing or performing at Buffalo Bills football games. Plaintiffs also attached "Codes of Conduct," which set rigid standards for their personal conduct, dress, and physique, and which gave the Buffalo Bills the right to use or republish their photos for advertising purposes.

Additionally, plaintiffs submitted in support of their motion "appearance records" from the 2012–2013 season relating to five particular members of the Buffalo Jills, which records were obtained through discovery. Those records show that one of the nonparty members of the Buffalo Jills worked 360 ½ hours during that season and was paid for only 17 ½ hours. Another such person worked 372 ¾ hours and was paid for 16 hours. Plaintiff Alyssa U. worked 369 hours and was paid for 13 hours. Plaintiff Maria P. worked 368 ½ hours and was paid for five hours. Plaintiff Melissa M. worked 383 hours and was paid for nine hours. None of the five referenced cheerleaders were paid on average more than $2.60 per hour.

We conclude that Supreme Court properly granted the motion and certified the class. Contrary to the initial contention of the National Football League, the Buffalo Bills, and Cumulus Radio Company, formerly known as Citadel Broadcasting Company (Cumulus) (collectively, defendants), the court properly considered the evidence that plaintiffs submitted with their reply papers. Although it is generally improper for a moving party to submit evidence for the first time with its reply papers, the court may consider such evidence where the opposing party has the opportunity to submit a surreply (see Citimortgage, Inc. v. Espinal, 134 A.D.3d 876, 879, 23 N.Y.S.3d 251 ; Park Country Club of Buffalo, Inc. v. Tower Ins. Co. of N.Y., 68 A.D.3d 1772, 1774, 893 N.Y.S.2d 408 ). Here, the parties had the opportunity to submit surreply papers and, indeed, the Buffalo Bills' attorney submitted a thorough surreply affirmation responding to the evidence in plaintiffs' reply papers.

We reject defendants' further contention that plaintiffs failed to meet the five requirements of CPLR 901(a). Class action is appropriate only if all five of the requirements are met (see Rife v. Barnes Firm, P.C., 48 A.D.3d 1228, 1229, 852 N.Y.S.2d 551, lv. dismissed in part and denied in part 10 N.Y.3d 910, 861 N.Y.S.2d 270, 891 N.E.2d 305 ), and the burden of establishing those requirements is on the party seeking certification (see DeLuca v. Tonawanda Coke Corp., 134 A.D.3d 1534, 1535, 22 N.Y.S.3d 768, lv. denied 137 A.D.3d 1633, 26 N.Y.S.3d 906 ). The first prerequisite is that the class must be so numerous that joinder of all of its members is impracticable (see CPLR 901[a][1] ). Here, the Buffalo Bills admit that the class has approximately 134 members, and classes of 53 to 500 members have been deemed "well above the numerosity threshold contemplated by the legislature and approved by courts" ( Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399, 998 N.Y.S.2d 729, 23 N.E.3d 997 ).

The second prerequisite is that there are common questions of law or fact that predominate over questions affecting only individual members (see CPLR 901[a][2] ). That prerequisite requires predominance of common questions over individual questions, not identity or unanimity of common questions, among class members (see Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 423, 904 N.Y.S.2d 372 ; Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 98, 434 N.Y.S.2d 698 ). It is thus well established that "the amount of damages suffered by each class member typically varies from individual to individual, [and] 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, 24 N.Y.3d at 399, 998 N.Y.S.2d 729, 23 N.E.3d 997 [internal quotation marks omitted]; see DeLuca, 134 A.D.3d at 1536, 22 N.Y.S.3d 768 ). Indeed, where " ‘the same types of subterfuge[ ] [were] allegedly employed to pay lower wages,’ commonality of the claims will be found to predominate, even though the putative class members have ‘different levels of damages' " ( Weinstein v. Jenny Craig Operations, Inc., 138 A.D.3d 546, 547, 30 N.Y.S.3d 618 ; see Kudinov v. Kel–Tech Constr. Inc., 65 A.D.3d 481, 482, 884 N.Y.S.2d 413 ). Here, the common questions include whether the putative class members were employees or independent contractors and whether defendants failed to pay them in accordance with the law, and we conclude that those questions predominate over individual questions of damages.

Insofar as defendants contend that plaintiffs' common-law fraud cause of action precludes class action because it involves individual questions of reliance, we reject that contention.

Plaintiffs allege that defendants made uniform misrepresentations in the contracts that plaintiffs were made to sign, and thus reliance may be inferred from the nature of the representation and the acceptance by the plaintiffs (see Norwalk v. Manufacturers & Traders Trust Co., 80 A.D.2d 745, 745, 437 N.Y.S.2d 178 ). To the extent that defendants contend that plaintiffs' quantum meruit and unjust enrichment claims involve individual questions that preclude class action, we conclude that the common questions predominate over any such individual questions (see generally CPLR 901[a][2] ; Ackerman v. Price Waterhouse, 252 A.D.2d 179, 201, 683 N.Y.S.2d 179 ).

The third prerequisite is that the class representatives' claims are typical of the claims of the class (see CPLR 901[a][3] ). Plaintiffs' reply affidavits and the documents attached thereto establish that they were subject to the same treatment during the 2009–2010, 2012–2013, and 2013–2014 seasons. Although none of the plaintiffs herein...