Lavrenyuk v. Life Care Servs., Inc.

• Decision Date: 26 October 2021
• Docket Number: 14504-14504A,Index No. 156393/17,Case No. 2021–02414
• Citation: 198 A.D.3d 569,152 N.Y.S.3d 907 (Mem)
• Parties: Olena LAVRENYUK, individually and on behalf of all others similarly situated, Plaintiff–Respondent, v. LIFE CARE SERVICES, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 569

152 N.Y.S.3d 907 (Mem)

Olena LAVRENYUK, individually and on behalf of all others similarly situated, Plaintiff–Respondent,

v.LIFE CARE SERVICES, INC., Defendant–Appellant.

14504-14504A

Index No. 156393/17

Case No. 2021–02414

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

ENTERED October 26, 2021

Peckar & Abramson, P.C., New York (Aaron C. Schlesinger of counsel), for appellant.

Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondent.

Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.

Orders, Supreme Court, New York County (Alexander M. Tisch, J.), entered June 30, 2020, which granted plaintiff's motion for class certification and leave to amend the complaint, denied defendant's cross motion to strike the affidavit of a putative class member and for counsel fees and sanctions, and approved the form and publication of notice of the class action, unanimously affirmed, without costs.

Defendant's records indicating that the putative class member never worked any shifts are not conclusive as to her employment status, but simply raise a question of fact as to the veracity of her affidavit, since the records show that the putative class member was considered an employee and participated in an in-service training program. There is no evidence to support defendant's claim that plaintiff or her counsel submitted the affidavit knowing that it was materially false, and notably, one of plaintiff's central claims is that defendant did not keep accurate records of the hours worked by its employees.

The court did not improvidently exercise its discretion in determining that plaintiff met her burden of demonstrating the prerequisites for class action certification under CPLR 901 and 902 (see Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191, 683 N.Y.S.2d 179 [1st Dept. 1998] ). In support of her motion for certification, plaintiff submitted evidence that she worked with at least 40 other home health aides, and also submitted her paystubs and those of other employees. Plaintiff sufficiently established that the class was so numerous that joinder of all members was impracticable and provided evidence that the commonality and typicality of her claims were well suited to class action, which has been determined to be a superior vehicle for resolving the type of widespread wage violations alleged here (see Andryeyeva v. New York Health Care, Inc., 33 N.Y.3d 152, 184, 100 N.Y.S.3d 612, 124 N.E.3d 162 [2019] ; Stecko v. RLI Ins....