Garcia v. Best Prof'l Home Care Agency, Inc.
| Docket Number | Index No. 530659/2022 |
| Decision Date | 30 June 2023 |
| Citation | 2023 NY Slip Op 32416 (U) |
| Parties | MARVIN GARCIA, individually and behalf of himself and others similarly situated, Plaintiff, v. BEST PROFESSIONAL HOME CARE AGENCY, INC., Defendant. |
| Court | New York Supreme Court |
DECISION AND ORDER
The following e-filed papers read herein:
NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
Opposing Affidavits (Affirmations)
51-52, 73-74
Affidavits/ Affirmations in Reply
86
Upon the foregoing papers, defendant Best Professional Home Care Agency, Inc. ("defendant"), moves for an order: (1) pursuant to CPLR 3211 (a) (3), dismissing the complaint for lack of standing; (2) pursuant to CPLR 3211 (a) (7) dismissing the complaint for failure to state a cause of action; and (3) pursuant to CPLR 3211 (a) (10), dismissing the complaint for failure to join a necessary party (motion sequence number 1). Plaintiff Marvin Garcia ("plaintiff') cross-moves for an order: (1) pursuant to CPLR 3214, lifting/vacating the automatic stay of discovery arising from defendant's CPLR 3211 motion to dismiss; (2) granting plaintiff an extension of time to move for class certification; and (3) compelling defendant to respond to plaintiffs discovery demands (motion sequence number 3). Non-party RSC Insurance Brokerage, Inc. ("RSC") moves for an order, pursuant to CPLR 2304 quashing the subpoena served upon it by plaintiff, or, in the alternative, pursuant to CPLR 3103, issuing a protective order denying the subpoena in its entirety (motion sequence number 4).
In his putative class action complaint, plaintiff alleges that he and the putative class members are or were home health care aides employed by defendant to provide personal care assistance, health-related tasks and other home care services to defendant's clients. Plaintiff further alleges that defendant (a) failed to pay wages in violation of the weekly wage payment requirements of Labor Law § 191, (b) improperly withheld wages in violation of Labor Law § 193, (c) willfully failed to pay prevailing wages as required by Home Care Worker Wage Parity Act (Public Health Law § 3614-c), (d) failed to pay living wages in violation of New York City Fair Wages for Workers Act (Administrative Code of City of N.Y. § 6-109), (e) failed to pay spread of hours premium as required by 12 NYCRR 142-2.4, and (f) failed to provide accurate wage notices and wage statements in violation of Labor Law § 195. Plaintiff alleges that he commenced this action on behalf of himself and a class consisting of each and every employee of defendant who provided home care services to defendant's clients since 2016. Among other things, plaintiff believes that the putative class consists of over 200 persons and that plaintiffs claims are typical of those of the class.
Initially, this Court finds that plaintiff has demonstrated that defendant's motion to dismiss pursuant to CPLR 3211 is unavailing. In the affidavit of service filed on October 28, 2022, plaintiff's process server states that he delivered a copy of the summons and complaint on October 27, 2022, to a person authorized to accept service upon defendant at defendant's corporate address. This affidavit of service constitutes prima facie evidence of proper service on that date pursuant to CPLR 311 (a) (1) (see Hayden v. Southern Wine & Spirits of Upstate N.Y, Inc., 126 A.D.3d 673, 674 [2d Dept 2015]; see also U.S. Bank Trust, N.A. v. Catalano, 215 A.D.3d 992, 993-994 [2d Dept 2023]). Defendant had until November 16, 2022, to appear, answer or make a motion, which it failed to do. Thus, it is in default. Defendant's motion to dismiss, which was made on November 29, 2022, without a request for an extension of time to answer, appear or make a pre-answer motion pursuant to CPLR 3211, is untimely (CPLR 311 [a] [1]; 320 [a]; 3211 [e]) and may not be considered (see Yan Ping Zu v. Van Zwienen, 212 A.D.3d 872, 875 [2d Dept 2023]; Oteri v. Oteri-Harkins, 183 A.D.3d 902, 903 [2d Dept 2020]; Holubar v. Holubar, 89 A.D.3d 802, 802-803 [2d Dept 2011]; see also Wilmington Trust, N.A. v. Ashe, 189 A.D.3d 1130, 1131-1132 [2d Dept 2020]).
Assuming arguendo that defendant's motion was timely, the Court would still deny the motion for the following reasons. Plaintiff has adequately pleaded the prerequisites that are required for a claim to proceed as a class action under CPLR 901 (see Maddicks v. Big City Props., LLC, 34 N.Y.3d 116, 123-128 [2019]; Quinn v. Parkoff Operating Corp., 178 A.D.3d 450, 450 [1st Dept 2019]; Rubman v. Osuchowski, 163 A.D.3d 1471, 1472-1473 [4th Dept 2018]; Ackerman v. New York Hosp. Med. Ctr. of Queens, 127 A.D.3d 794, 796 [2d Dept 2015])[1] and adequately pleaded defendant's failure to pay wages as required by the various statutes and regulations (see Rosario v. Hallen Constr. Co., Inc., 214 A.D.3d 544, 544-545 [1st Dept 2023]; Lomeli v. Falkirk Mgt. Corp., 179 A.D.3d 660, 662-663 [2d Dept 2020]; Ackerman, 127 A.D.3d at 795-796). Thus, for purposes of CPLR 3211 (a) (7), plaintiffs complaint states a class action cause of action for failure to pay the required wages (see Maddicks, 34 N.Y.3d at 123-128; Griffin v. Gregory's Coffee Mgt., 191 A.D.3d 600, 600-601 [1st Dept 2021]; Rosario, 214 A.D.3d 544-545; Ackerman, 127. A.D.3d at 795-796).
In support of its motion, defendant has also submitted an affidavit from Susan Smith ("Smith"), an administrator for defendant, who asserts that defendant is not the employer of plaintiff and the putative class members, but rather, is a "fiscal intermediary" within the meaning of a Medicaid program known as Consumer Directed Personal Assistance Program (Social Services Law § 365-f; 18 NYCRR 505.28). Smith further asserts that the consumers who are cared for by plaintiff and the putative class of home health care workers are the actual employers of plaintiff and the putative class members. This affidavit, however, fails to demonstrate for purposes of a CPLR 3211 (a) (7) motion that plaintiffs allegation that defendant is plaintiffs employer is not a fact at all (see Cajigas v. Clean Rite Ctrs., 187 A.D.3d 700, 701 [2d Dept 2020]; Lomeli, 179 A.D.3d at 662; Yu Chen v. Kupoint (USA) Corp., 160 A.D.3d 787, 788-789 [2d Dept 2018]; Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807-808 [2d Dept 2017]; see also Miglino v. Bally Total Fitness of Greater N.Y, Inc., 20 N.Y.3d 342, 351 [2013]). Moreover, assuming that Smith's affidavit is sufficient to conclusively establish that defendant acts as a fiscal intermediary, this does not necessarily exclude it from being deemed an employer for purposes of plaintiff s wage claims here (see Hargers-Powell v. Angels in Your Home LLC, 330 FRD 89, 109 [WDNY 2019] []; see also Priester v. Frangakis, 198 A.D.3d 1295, 1297 [4th Dept 2021]; Ray v. Los Angeles County Dept, of Social Servs., 52 F4th 843, 850-851 [9th Cir 2022]; Alves v. Affiliated Care of Putnam, Inc., 2022 WL 1002817[U], *7 [SDNY 2022]; cf. State Farm Mut. Auto. Ins. Co. v. Klein, 190 A.D.3d 876, 878 [2d Dept 2021] []).
Even if defendant is deemed an employer, defendant asserts that it is entitled to dismissal pursuant to CPLR 3211 (a) (10) because the consumer (i.e., the person cared for by plaintiff) is a necessary party to this action since the consumer is, at the very least, a joint-employer of plaintiff. Defendant, however, has failed to identify how the failure to join the consumer would impede the court's ability to provide complete relief between the parties or that the consumer would be inequitably affected by a judgment in this action (see Rimberg v. Horowitz, 206 A.D.3d 832, 834 [2d Dept 2022]; Blatt v. Johar, 177 A.D.3d 634, 635-636 [2d Dept 2019]; CPLR 3211 [a] [10]; 1001 [a]). In cases addressing liability under the similar requirements of the federal Fair Labor Standards Act ("FLSA"), a joint employer is generally5nof deemed a necessary party under federal joinder rules because any employer held liable under the FLSA is jointly and severally liable with any other joint-employer (see Roy v. FedEx Ground Package System, Inc., 2020 WL 3799203[U], at 4 [D Mass. 2020]; see also Scalia v. Employer Solutions Staffing Group, LLC, 951 F.3d 1097, 1103-1104 [9th Cir 2020], cert denied__US__, 141 S.Ct. 1376 [2021]; Robertson v. REP Processing, LLC, 2020 WL 5735081[U], *6-7 [D Col 2020]). The defendant has proffered no evidence why the same result should not apply under the Labor Law ().[2]
Finally, defendant's contention that it is entitled to dismissal pursuant to CPLR 3211 (a) (3) because plaintiff lacks standing to bring this class action is based only on defendant's assertion that plaintiff has failed to adequately plead the requirements for a class action (defendant's reply affirmation, at ¶¶ 8-19). Since this Court has found that plaintiffs allegations are sufficient at this pleading stage, it rejects defendant's arguments regarding standing.
Turning to plaintiffs cross motion, this Court finds that plaintiffs need to conduct pre-class certification discovery to determine whether the prerequisites of a class action set forth in CPLR...
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