Moreno v. Future Health Care Servs., Inc., 2015–06013
| Decision Date | 12 August 2020 |
| Docket Number | 2015–11787,Index No. 500569/13,2015–06013 |
| Parties | Adriana MORENO, individually and on behalf of all others similarly situated, et al., Appellants, v. FUTURE HEALTH CARE SERVICES, INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
186 A.D.3d 594
129 N.Y.S.3d 113
Adriana MORENO, individually and on behalf of all others similarly situated, et al., Appellants,
v.
FUTURE HEALTH CARE SERVICES, INC., et al., Respondents.
2015–06013
2015–11787
Index No. 500569/13
Supreme Court, Appellate Division, Second Department, New York.
Submitted—January 9, 2017
August 12, 2020
Getman & Sweeney, PLLC, Kingston, N.Y. (Michael J.D. Sweeney and Artemio Guerra of counsel), Abbey Spanier, LLP, New York, N.Y. (Judith L. Spanier of counsel), and National Employment Law Project, New York, N.Y. (Catherine Ruckelshaus of counsel), for appellants (one brief filed).
Peckar & Abramson, P.C., New York, N.Y. (Aaron C. Schlesinger, Kevin J. O'Connor, and Shannon D. Azzaro of counsel), for respondents.
RUTH C. BALKIN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER
In a putative class action, inter alia, to recover damages for violations of Labor Law article 19, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (David I. Schmidt, J.), dated April 24, 2015, and (2) an order of the same court (Lawrence Knipel, J.), dated October 27, 2015. The order dated April 24, 2015, denied the plaintiffs' motion for class certification pursuant to CPLR article 9. The order dated October 27, 2015, insofar as appealed from, upon reargument, adhered to the determination in the order dated April 24, 2015. By decision and order dated September 13, 2017, this Court dismissed the appeal from the order dated April 24, 2015, as that order was superseded by the order dated October 27, 2015, and reversed the order dated October 27, 2015, insofar as appealed from, and, upon reargument, vacated the order dated April 24, 2015, and granted the plaintiffs' motion for class certification pursuant to CPLR article 9 ( Moreno v. Future Care Health Servs. Inc., 153 A.D.3d 1254, 61 N.Y.S.3d 589 ). On March 26, 2019, the Court of
Appeals reversed the decision and order of this Court and remitted the matter to this Court to evaluate the issues in accordance with the interpretation by the New York State Department of Labor of Minimum Wage Order Number 11 for Miscellaneous Industries and Occupations (12 NYCRR part 142) and to consider alternative bases for class certification ( Andryeyeva v. New York Health Care., Inc., 33 N.Y.3d 152, 100 N.Y.S.3d 612, 124 N.E.3d 162 ). Justice Maltese has been substituted for former Justice Hall (see 12 NYCRR 1250.1[b] ).
ORDERED that, upon remittitur from the Court of Appeals, the appeal from the order dated April 24, 2015, is dismissed, as that order was superseded by the order dated October 27, 2015, made upon reargument; and it is further,
ORDERED that the order dated October 27, 2015, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiffs, former home health care aides employed by the defendant Future Care Health Services, Inc. (hereinafter Future Care), commenced this action on behalf of themselves
and other similarly situated current and former home health care aides employed by Future Care, alleging violations of the Labor Law. The plaintiffs alleged, among other things, that Future Care's practice of paying them a flat rate of between $115 and $125 for 24–hour shifts resulted in a wage that was below the minimum wage required by law. The plaintiffs asserted that, instead of paying those flat rates, Future Care was required to pay them and putative class members the equivalent of minimum wage for each hour of a 24–hour shift.
The plaintiffs moved for class certification pursuant to CPLR article 9. In an order dated October 27, 2015,...
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