Preview
(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
Exhibit AINDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
Greenky, Ross M.
From: Greenky, Ross M.
Sent: Friday, July 29, 2022 4:37 PM
To: rsattiraju@s-tlawfirm.com
Cec: Sciotti, Michael J.; Capungan, Regine Sarah C.
Subject: Flores/Berrios et al. v. Dinosaur Restaurants
Attachments: First Set of Interrogatories to Plaintiff Berrios.PDF; First Set of Interrogatories to Plaintiff
Flores.PDF; First Request for Production of Documents to Plaintiff Berrios.PDF; First
Request for Production of Documents to Plaintiff Flores.PDF; Notice of Deposition for
Plaintiff Flores.PDF; Notice of Deposition for Plaintiff Berrios.PDF; Answer to
Complaint.PDF
Dear Mr. Sattiraju:
Attached please find the following:
1. Defendants’ Answer to the Complaint;
2. Notice of Deposition Upon Oral Examination of Deanna Flores;
3. Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Deanna
Flores with HIPAA Authorization;
4. Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Deanna Flores;
5. Notice of Deposition Upon Oral Examination of Ashleyann Berrios;
6. Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Ashleyann
Berrios with HIPAA Authorization;
7. Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Ashleyann Berrios.
Copies of these attachments are also being sent to you by regular mail.
Further, until our filing today, Dinosaur was unaware of the second class action filed by the same Plaintiffs and
your office, Index No. 656614/2022. Contrary to the filed Affidavit of Service, Dinosaur has not been served
with a copy of this Complaint. Accordingly, we request an extension to August 31, 2022 for our deadline to
answer this Complaint. If such an extension is amenable to you, we will provide a joint stipulation for review
and execution.
If you have any questions, please feel free to call at (315) 425-2702.
Ross M. Greenky - Counsel
he/him/his
@ Syracuse &,(315) 425-2702 (315) 263-0338(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
Exhibit B(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM CEO eso e te 2022
NYSCEF DOC. NO.
15 RECEIVED NYSCEF: 01/05/2023
Greenky, Ross M.
From:
Sent:
To:
Ce:
Subject:
Attachments:
Greenky, Ross M.
Wednesday, August 31, 2022 3:51 PM
rsattiraju@s-tlawfirm.com
Sciotti, Michael J.; Capungan, Regine Sarah C.
Wage and Hour Complaint: Berrios/Flores et al v. Dinosaur Restaurants
Answer (e-filed).PDF; First Req. for Prod of Docs to Plaintiff Flores.PDF; First Set of
Interrogatories to Plaintiff Flores.PDF; First Req. for Prod of Docs to Plaintiff Berrios.PDF;
First Set of Interrogatories to Plaintiff Berrios.PDF; Notice of Deposition for Plaintiff
Flores.PDF; Notice of Deposition for Plaintiff Berrios.PDF
Dear Mr. Sattiraju:
Attached please find the following:
i
2.
7.
Defendants’ Answer to the Complaint;
Notice of Deposition Upon Oral Examination of Deanna Flores;
Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Deanna
Flores;
Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Deanna Flores;
Notice of Deposition Upon Oral Examination of Ashleyann Berrios;
Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Ashleyann
Berrios;
Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Ashleyann Berrios.
Copies of these attachments are also being sent to you by regular mail.
If you have any questions, please feel free to call at (315) 425-2702.
Ross M. Greenky - Counsel
he/him/his
@ Syracuse &,(315) 425-2702 (315) 263-0338(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
Exhibit CINDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
Greenky, Ross M.
From: Edward Herban
Sent: Wednesday, November 30, 2022 11:45 AM
To: Greenky, Ross M.; Ravi Sattiraju
Ce: Sciotti, Michael J; Carol Stenger
Subject: RE: Flores/Berrios v Dinosaur Restaurant
We agree. Thank you for reaching out.
-Ed
Edward J. Herban, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Office: (609) 469-2110
Direct Dial: (609) 469-2114
Email: eherban@s-tlawfirm.com
From: Greenky, Ross M.
Sent: Wednesday, November 30, 2022 11:39 AM
To: Edward Herban ; Ravi Sattiraju
Ce: Sciotti, Michael J. ; Carol Stenger
Subject: RE: Flores/Berrios v Dinosaur Restaurant
Ed,
We write to request an extension until December 9, 2022 for both sides to provide discovery responses. We are
diligently working on the responses, but are awaiting some additional documents and information.
Please let us know if you agree to this mutual extension.
From: Greenky, Ross M.
Sent: Thursday, November 3, 2022 12:37 PM
To: Edward Herban ; Ravi Sattiraju
Ce: Sciotti, Michael J. ; Carol Stenger
Subject: RE: Flores/Berrios v Dinosaur Restaurant
Ed,
That’s fine with us.
From: Edward Herban
Sent: Thursday, November 3, 2022 11:11 AM
To: Greenky, Ross M. ; Ravi Sattiraju
Cc: Sciotti, Michael J. ; Carol Stenger
Subject: RE: Flores/Berrios v Dinosaur RestaurantINDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
We are diligently working on Plaintiffs’ responses to your client’s discovery demands. That said, in light of your request, |
suggest we agree that all discovery responses (Defendant to Plaintiffs/Plaintiffs to Defendant) will be mutually due on
November 30. This should give us all enough time to complete the tasks. Obviously, the Thanksgiving holiday in between
may impact the deadline, but | think it’s an achievable goal for both sides.
Please let me know your thoughts.
-Ed
Edward J. Herban, Esq.
SATTIRAJU & THARNEY, LLP
Direct Dial: (609) 469-2114
Mobile:
Email: eherban@s-tlawfirm.com
From: Greenky, Ross M.
Sent: Thursday, November 3, 2022 10:54 AM
To: Edward Herban ; Ravi Sattiraju
Cc: Sciotti, Michael J. ; Carol Stenger
Subject: RE: Flores/Berrios v Dinosaur Restaurant
Mr. Herban and Mr. Sattiraju,
Following up on my e-mail below.
Thank you.
Ross M. Greenky
Pronouns: he/him/his
Counsel
BARCLAY DAMON"
Barclay Damon Tower + 125 East Jefferson Street * Syracuse, NY 13202
D: (315) 425-2702 + F: (315) 703-6246 « C: (315) 263-0338
E: rgreenky@barclaydamon.com
www.barclaydamon.com + vCard « Profile
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notify the sender immediately by e-mail and delete the original message.INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
From: Greenky, Ross M.
Sent: Thursday, October 27, 2022 10:43 AM
To: Edward Herban ; Ravi Sattiraju
Cc: Sciotti, Michael J. ; Carol Stenger
Subject: RE: Flores/Berrios v Dinosaur Restaurant
Mr. Herban and Mr. Sattiraju,
I write to request a 3-week extension of time for Defendant to respond to Plaintiffs’ first set of discovery
demands. Please let us know if you consent to our request.
In addition, Defendant served its First Request for Production of Documents and First Set of Interrogatories to
Plaintiffs Deanna Flores and Ashleyann Berrios on July 29, 2022 in the discrimination case and August 31,
2022 in the wage and hour case. Please let us know the status of Plaintiffs’ responses.
Thank you.
From: Carol Stenger
Sent: Wednesday, September 28, 2022 1:58 PM
To: Greenky, Ross M. ; Sciotti, Michael J.
Cc: Edward Herban ; Ravi Sattiraju
Subject: Flores/Berrios v Dinosaur Restaurant
Counsel,
On behalf of Edward Herban, please see the attached correspondence and discovery requests on behalf of the
plaintiffs.
Thank you for your attention to this matter.
Carol
Carol Stenger
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM None acee
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
East Windsor, NJ 08520
Office: (609) 469-2110
Direct Dial (609) 469-2118
Email: cstenger@s-tlawfirm.com(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
Exhibit D(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF:
01/05/2023
Cruz v Town Sports Intl.
Supreme Court of New York, New York County
January 29, 2013, Decided; February 4, 2013, Filed
INDEX NO 600695/05, INDEX NO. 602024/07
Reporter
2013 N.Y. Misc. LEXIS 449 *; 2013 NY Slip Op 30233(U) *
[1] SARAH CRUZ, J ESSIE MARTINEZ, ANGELA ROSINSKI, ANGEL AULET, SCOTT ALLEN, NICOLE
SASSO, ROBERT LOPRESTI and PATRICK MAURICE on behalf of themselves and all others similarly situated,
Plaintiffs, -against- TOWN SPORTS INTERNATIONAL, d/b/a NEW YORK SPORTS CLUB, DefendantSARAH
CRUZ, ANGELA ROSINSKI, SCOTT ALLEN, NICOLE SASSO, ROBERT LOPRESTI, and PATRICK MAURICE, on
behalf of themselves and all others similarly situated, Plaintiffs, -against- TOWN SPORTS INTERNATIONAL, d/b/a
NEW YORK SPORTS CLUB, Defendant.
Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL
REPORTS
Subsequent History: Affirmed by Cruz v. Town Sports Intl., 2014 N.Y. App. Div. LEXIS 2480 (N.Y. App. Div. 1st
Dep't, Apr. 15, 2014)
Prior History: Cruz v. Town Sports Intl., 21 Misc. 3d 1137(A), 2008 N.Y. Misc. LEXIS 7060 (2008)
Judges: [*1] PRESENT: HON. PAUL WOOTEN.
Opinion by: PAUL WOOTEN
Opinion
[2] Motion sequence numbers 003 and 004 in the herein action (the 2005 action) and motion sequence numbers
002 and 003 in the action with index number 602024/2007 (the 2007 action) are hereby consolidated for purposes
of disposition.
Motion sequence 003 in the 2005 action and motion sequence number 002 in the 2007 action are identical, and
both seek to compel defendant Town Sports International d/b/a New York Sports Club (NYSC) to provide additional
discovery. Motion sequence 004 in the 2005 action and motion sequence 003 in the 2007 action are also identical,
with NYSC moving to dismiss the class claims for failure to file a class certification motion in a timely manner. Since
the motions to dismiss could render the discovery motions moot, the motions to dismiss will be addressed first.
BACKGROUND
Plaintiffs commenced the 2005 action claiming that NYSC failed to pay its personal fitness trainers and its assistant
fitness managers at the overtime rate for hours that they worked in excess of 40 hours per week. Plaintiffs sought to
amend the complaint in the 2005 action to add class-wide time shaving claims, and to expand the class to include
all hourly [*2] NYSC employees in New York State. Instead of amending the complaint the court suggested that
plaintiffs file a separate action, which resulted in plaintiffs commencing the 2007 action. That action alleges that
NYSC engaged in a practice of "time shaving," i.e., NYSC permitted its staff to regularly delete or edit hours actually
worked by NYSC hourly employees from its time and payroll systems, resulting in paying the workers for fewer(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
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2013 N.Y. Misc. LEXIS 449, *2; 2013 NY Slip Op 30233(U), **2
hours than they actually worked. Plaintiffs further claim that NYSC has a pattern of requiring employees to work
“off-the-clock," without pay.
During the course of discovery, the parties have had a number of discovery disputes, and in the course of resolving
them, agreed that the discovery that they engaged in was directed toward obtaining information relevant to class
certification. In the discovery motions [**3] currently before the Court, plaintiffs contend that NYSC has failed to
provide requested relevant information. NYSC asserts that most of the information that plaintiffs seek has already
been provided, and that what has not been provided is not discoverable at this juncture.
The date by which the plaintiffs' motion for class certification was to be [*3] filed was extended several times, both
by stipulation and by court order. On J anuary 14, 2010, oral argument was held on the discovery motions which are
currently pending before the court. On J anuary 15, 2010, NYSC presented the court with a stipulation, signed by
both parties, to extend the deadline for class certification until April 28, 2010. The court so-ordered the stipulation
on) anuary 27, 2010. Plaintiff's maintain that they did not receive a copy of the signed order, and were unaware that
the stipulation had been so-ordered. Plaintiffs aver that they believed that no new class certification deadline had
been scheduled. In September 2010, NYSC informed plaintiffs' counsel that defendant was moving to dismiss the
class claims based on plaintiffs' failure to meet the class certification deadline. The dismissal motions currently
before the court ensued.
In the intervening time, the parties have been engaged in settlement negotiations, which have proven unsuccessful,
and the motions are now ripe for disposition.
DISCUSSION
NYSC contends that plaintiffs failed to move for class certification before the expiration of the April 28, 2010
deadline, and plaintiffs also failed to move to [*4] extend the time within which to move. Consequently, NYSC
maintains that so much of the actions that purport to be on behalf of the class of people similarly situated must be
dismissed. Plaintiffs contend that they were unaware that the deadline for class certification was set at April 28,
2010, and that defendant never informed them of the so-ordered deadline. Plaintiffs' assert that NYSC should have
alerted them regarding the so-ordered stipulation, and that, in any event, the Court has discretion to waive the
deadline in the interests of justice. Plaintiffs' only explanation for why [*4] they were unaware of the so-ordered
stipulation, when plaintiffs' counsel had signed that stipulation, amounts to law office failure. They do not offer any
basis for their suggestion that NYSC had an obligation to inform them that the court so-ordered the signed
stipulation.
Plaintiffs also maintain that the delay was in part because they were waiting for a decision on the discovery
motions, which decision was necessary before they could move for class certification. The Court notes that the
stipulation to extend the time within which to file the motion for class certification was signed while the discovery
[*5] motions were pending. The early deadline to file the motion for class certification had expired.
CPLR 902 provides that "[w]ithin sixty days after the time to serve a responsive pleading has expired for all persons
named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine
whether it is to be so maintained." The parties may stipulate to extend that time period, or the court may order such
extension. However, in the absence of an extension, the deadline set forth is mandatory (O'Hara v Del Bello, 47
NY 2d 363, 368-369, 391 N.E.2d 1311, 418 N.Y.S.2d 334 [1979]; Shah v Wilco Sys., Inc., 27 AD3d 169, 173, 806
N.Y.S.2d 553 [1st Dept. 2005]). While it is true that the court has discretion to deem a class certification motion
timely, or to grant a motion to extend the time within which to file a certification motion even after the deadline has
passed, the plaintiff must show good cause for such relief (see Argento v Wal-Mart Stores, Inc., 66 AD3d 930, 932,
888 N.Y.S.2d 117 [2d Dept 2009]; Matros Automated Elec. Const. Corp. v Libman, 37 AD3d 313, 830 N.Y.S.2d 127
[1st Dept 2007]; Shah, 27 AD3d at 173).
Here, plaintiffs have not only failed to timely bring a motion for class certification, but they have not yet brought one
at all. [*6] While it is true that they claim that they need further discovery in order to obtain the information they
need to adequately respond to the expected opposition from defendant, they have also failed to move to extend the
time within which to bring the class certification motion, which is required when the discovery obtained is(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
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2013 N.Y. Misc. LEXIS 449, *6; 2013 NY Slip Op 30233(U), **4
inadequate to bring a class certification motion (see Meraner v Albany Med. Ctr., 211 AD2d 867, 868, 621 N.Y.S.2d
208 [3d [*5] Dept 1995)). In fact, in pointing out that the court has discretion to extend the time within which to
move for class certification, plaintiffs discuss this discretion with reference to an application for extension of time.
Here, there has been no such application. Thus, plaintiffs ask the Court to deny NYSC's motion to dismiss without
seeking an extension of the deadline to move for class certification. In all the cases cited to by plaintiffs in support of
their position, the parties who sought a waiver of the deadline for class certification had already brought a class
certification motion, which was untimely in the absence of a waiver (see Argento, 66 AD3d at 932; Galdamez v
Biordi Constr. Corp., 50 AD3d 357, 358, 855 N.Y.S.2d 104 [1st Dept 2008]; Matros Automated Elec. Const. Corp.,
37 AD3d at 313; [*7] Shah, 27 AD3d at 173). Since there is no motion or cross-motion currently pending before the
Court for class certification, which would give the Court the option to grant plaintiffs a waiver, defendant's motion to
dismiss must be granted. Consequently, defendant's motion to dismiss the class claims is granted. In view of this
conclusion, plaintiffs' motions seeking further discovery with respect to class certification is denied as moot.
CONCLUSION
Accordingly, itis hereby
ORDERED that defendant's motions (motion sequence number 003 in the action with index number 602024/07 and
motion sequence number 004 in the action with index number 600695/05) are granted and the class claims of those
actions are dismissed; and it is further;
ORDERED that plaintiffs' motions (motion sequence number 002 in action 602024/07 and motion sequence
number 003 in action 600695/05) are denied as moot; and it is further;
ORDERED that defendant is directed to serve a copy of this Order with Notice of Entry upon all parties; and it is
further,
ORDERED that the remainder of the actions shall continue, and all remaining parties [6] are directed to appear
for a Status Conference on March 20, 2013 at 11:00 a.m. at 60 Centre [*8] Street, Room 341, Part 7.
This Constitutes the Decision and Order of the Court.
Dated: 1/29/13
/s/ Paul Wooten
PAUL WOOTEN J.S.C.
End of Document(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022
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01/05/2023
Han v. Sterling Nat'l Mortg. Co.
United States District Court for the Eastern District of New York
September 14, 2011, Decided; September 14, 2011, Filed
No 09-CV-5589 (J FB) (AKT)
Reporter
2011 U.S. Dist. LEXIS 103453 *; 2011 WL 4344235
JOSEPH HAN & TONY CHANG, Plaintiffs, versus STERLING NATIONAL MORTGAGE COMPANY, INC.,
J ONATHAN GOLDBERG, ADAM DE] AK & MICHAEL BIZENOV, Defendants.
Counsel: [*1] For) oseph Han, Tony Chang, on behalf of themselves and others similarly situated, Plaintiffs: C.K.
Lee, LEAD ATTORNEY, New York, NY; Robert L. Kraselnik, LEAD ATTORNEY, Kraselnik & Lee, PLLC, New York,
NY.
For Sterling National Mortgage Company, Inc., J onathan Goldberg, Adam Dejak, Michael Bizenov, Defendants:
Paul}. Siegel, LEAD ATTORNEY, Ana Shields, Wendy J . Mellk, J ackson Lewis, LLP, Melville, NY.
Judges: ] OSEPH F. BIANCO, United States District } udge.
Opinion by: J OSEPH F. BIANCO
Opinion
MEMORANDUM AND ORDER
J OSEPH F. BIANCO, District} udge:
Plaintiffs J oseph Han and Tony Chang (hereinafter "plaintiffs") commenced this action on behalf of themselves and
others similarly situated on December 22, 2009, seeking unpaid minimum wages and overtime compensation from
defendants Sterling National Mortgage Company, Jonathan Goldberg, Adam Dejak and Michael Bizenov
(collectively, "defendants"), pursuant to the Fair Labor Standards Act of 1938, as amended, ("FLSA"), 29 U.S.C. §
201, et seq., as well as New York Labor Law ("NYLL").
Plaintiff J oseph Han ("Han" or "plaintiff') has moved, pursuant to Fed. R. Civ. P. 23, to certify a class for violations
of the NYLL and for the appointment of class counsel. For the reasons that [*2] follow, the motion is granted.
However, the scope of such notice shall be limited to only those individuals who are "similarly situated" to the
named plaintiff, as set forth in this Memorandum and Order.
|. BACKGROUND AND PROCEDURAL HISTORY
A. The Complaint
According to the complaint, defendant Sterling National Mortgage Company, Inc. ("Sterling") is a mortgage bank
that provides mortgage banking services to consumers in New York State. (Am. Compl. 9 7, 18.) Its headquarters
are located in Great Neck, New York and it has two additional offices in Staten Island, New York and Forest Hills,
New York. (Id. 91 7, 18.) Defendant J onathan Goldberg is the Assistant Vice President of Sterling. (Id. 4 10.)
Defendant Adam Dejak ("Dejak") is the Vice President of Sterling. (Id. | 9.) Defendant Michael Bizenov is Chairman
or Chief Executive Officer of Sterling. (Id. 4 8.)
Plaintiff alleges that he regularly worked over ten hours per day, over forty hours per week, and was paid on a
salary and commission basis. (Id. (1 22-23, 25.) Plaintiff contends that he was paid below minimum wage in
contravention of the FLSA and NYLL. (Id. 41 15, 27.) Plaintiff further claims that defendants had a policy of not(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022
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2011 U.S. Dist. LEXIS 103453, *3
[*3] paying overtime wages as required under the FLSA and NYLL. (Id. {| 29.) Finally, plaintiff asserts that
defendants had a policy of not paying the "spread of hours" premium for the days he worked over ten hours a day
despite being mandated to do so by the NYLL. (Id. 91 31, 54.)
B. Proposed Representative Plaintiff
Proposed class representative Han was formerly employed as an inside loan officer by defendants from about
February 2008 until August 2009 at defendants' office in Great Neck, New York. (Id. 9 18-19; Affirm of Wendy J.
Mellk dated Mar. 4, 2011 ("Mellk Affirm.") Ex.2.C (Han's Inside Loan Officer Compensation Agreement
("Compensation Agreement")).) According to Han, he was compensated on a draw against commission basis. (Am.
Compl. 4 25; Aff. of J oseph Han dated April 13, 2010 ("Han Aff.") 1 4; ! Mellk Affirm. Ex 2.C.) Under this scheme,
he received "a draw against commission in the maximum gross amount of $1,100 bi-weekly;" the draw was
"recoverable against commissions earned." (Mellk Affirm. Ex. 2.C 4/2.) Han waived any right to a jury trial to resolve
disputes relating to any of the terms of his Compensation Agreement. (Mellk Affirm. Ex 2.C 19.)
C. Procedural History
Plaintiffs Han and Tony Chang commenced this action on December 22, 2009. Plaintiffs filed an amended
complaint on February 25, 2010. On November 30, 2010 this Court granted plaintiffs' motion for conditional
certification of the FLSA claim as a representative collective action pursuant to the FLSA, 29 U.S.C. § 216(b).
(Docket 40.) On J anuary 12, 2011, Han filed a motion to certify a class for violations of the NYLL. Defendants filed
their opposition on March 4, 2011. Plaintiff submitted his reply on March 28, 2011. The Court has fully considered
the submissions and arguments of the parties.
Il. DISCUSSION
Han seeks certification under Fed. R. Civ. P. 23(a) and (b)(3) of a class (hereinafter "Proposed Class") of inside
loan officers "who were employed by Sterling National Mortgage Company, Inc. any time between" December 22,
2003 and June 2010. (Decl. of C.K. Lee dated January 12, 2011 ("Lee Decl.") Ex. 1 at 6; Pl.'s Reply at 1.)
[*5] Defendants object to the Proposed Class, arguing that common issues are not present, that Han's claims are
not typical, that Han is an inadequate class representative, that common issues of law or fact do not predominate,
and that a class action is not superior to individual litigation in this case.
As set forth below, the Court concludes that, because the requirements of Fed. R. Civ. P. 23(a) and (b)(3) have
been met, the motion for class certification and appointment of class counsel is granted.
A. Applicable Law
Rule 23(a) of the Federal Rules of Civil Procedure sets forth a four-part test for certifying a class: "(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 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)(1)-(4).
In seeking class certification, plaintiff must first demonstrate that all of the requirements of Fed. R. Civ. P. 23(a)
have been satisfied. See Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d
740 (1982); [*6] In re VISA Check/Mastermoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir. 2001), overruled in
part on other grounds by In re Initial Public Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006); Caridad v. Metro-North
Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999), overruled in part on other grounds by In re Initial Public Offering
Sec. Litig., 471 F.3d 24 (2d Cir. 2006); Weil v. Long Island Sav. Bank, FSB, 200 F.R.D. 164, 168 (E.D.N.Y. 2001);
In re Playmobil Antitrust Litig., 35 F. Supp. 2d 231, 238 (E.D.N.Y. 1998). Second, plaintiff must show that the
11n his declaration dated J anuary [*4] 11, 2011, which was filed in conjunction with his motion to certify a class, Joseph Han
reaffirmed and incorporated his affidavit submitted to the Court on April 13, 2010. (Docket 47.) The Court therefore cites to Han's
April 13 affidavit.(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023
2011 U.S. Dist. LEXIS 103453, *4
putative class falls within one of the three categories set forth in Rule 23(b). In re VISA Check/Mastermoney, 280
F.3d at 133. Plaintiff here seeks certification under Rule 23(b)(3).
The Second Circuit recently emphasized that the district court must conduct a "rigorous analysis" to determine "that
every Rule 23 requirement" is met before certifying a class. In re Initial Public Offering Sec. Litig., 471 F.3d at 33 &
n. 3, 41 (citing Falcon, 457 U.S. at 160-61). "[T]here is no reason to lessen a district court's obligation to make a
determination that every Rule 23 requirement is met before certifying a class just because of some or [*7] even full
overlap of that requirement with a merits issue." In re Initial Public Offering Sec. Litig., 471 F.3d at 41. Thus, itis not
sufficient for plaintiffs to make merely "some showing" that the requirements of Rule 23 have been met. Id. at 35-36
(citing and distinguishing Caridad, 191 F.3d at 292 and In re VISA Check/MasterMoney Antitrust Litig., 280 F.3d at
134-35). Instead, the following standard applies to class certification motions in this circuit:
(1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements
has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each
Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement
have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard,
that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between
a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4)
in making such determinations, a district judge should not assess any [*8] aspect of the merits unrelated to a
Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery
concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met
in order to assure that a class certification motion does not become a pretext for a partial trial of the merits.
In re Initial Public Offering Sec. Litig., 471 F.3d at 41. The Court now turns to the Rule 23 analysis in the instant
case within the legal framework articulated by the Second Circuit.
1. Numerosity
Rule 23(a)(1) requires that the proposed class be "so numerous that joinder of all members is impracticable." Fed.
R. Civ. P. 23(a)(1). "Impracticability means difficulty or inconvenience of joinder [not]. . . impossibility of joinder," In
re Blech Sec. Litig., 187 F.R.D. 97, 103 (S.D.N.Y. 1999), and the Second Circuit has observed that "numerosity is
presumed at a level of 40 members." Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995),
cert. denied, 515 U.S. 1122, 115 S. Ct. 2277, 132 L. Ed. 2d 281 (1995) (citing 1 Newberg on Class Actions § 3.05
(2d ed. 1985)); see also Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 466 (S.D.N.Y.
2005) [*9] ("Numerosity is presumed when a class consists of forty or more members.").
In the instant case, the numerosity requirement is clearly satisfied. Defendants do not contest in their opposition
papers that this requirement is met. Indeed, plaintiff alleges that the class would exceed 200 loan officers. (PI.'s
Mot. at 5.) Numerosity, therefore, is easily satisfied.
2. Common Questions of Law & Fact
Rule 23 mandates that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "[C Jourts
have liberally construed the commonality requirement to mandate a minimum of one issue common to all class
members." Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198-99 (S.D.N.Y. 1992). Thus, a single common issue
of law will satisfy the commonality requirement. Monaco v. Stone, 187 F.R.D. 50, 61 (E.D.N.Y. 1999). A common
issue of law will be found if plaintiffs "identify some unifying thread among the members' claims... ." Id. A court
may find a common issue of law even though there exists "some factual variation among class members' specific
grievances ... ." In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 240. "The commonality requirement may [thus]
be met when individual [*10] circumstances of class members differ, but ‘their injuries derive from a unitary course
of conduct." Velez v. Majik Cleaning Serv., Inc., 03 Civ. 8698 (SAS), 2005 U.S. Dist. LEXIS 709, at *9 (S.D.N.Y.
Jan. 18, 2005) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)).
Plaintiff alleges that all of the Proposed Class members were paid in the same manner based on a “draw" against
future commission. (PI.'s Mot. at 5-6.) Plaintiff also asserts that, as a result, whether or not the Proposed Class was(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
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paid a salary in accordance with the NYLL is an issue of law common to all the members. (Id.) In addition, plaintiff
argues that defendants had a policy of requiring the Proposed Class to work over forty hours a week. (PI.'s Reply at
2-3.) In opposing certification, defendants assert that the Proposed Class performed their jobs differently so that an
individualized inquiry would be necessary to assess whether they were properly considered exempt by defendants
from the otherwise applicable NYLL requirements. 2 (Defs.' Opp. at 14-15.) Defendants specifically rely on the
administrative exemption to the FLSA, which is equally applicable to the NYLL. See Ramos v. Baldor Specialty
Foods, Inc., No. 10 Civ. 6271 (RMB), 2011 U.S. Dist. LEXIS 66631, 2011 WL 2565330, at *5 n. 3 (S.D.N.Y. J une
16, 2011). [*11] Defendants further contend that the class should be limited to loan officers employed by
defendants between J uly 2007 and April 2010. (Defs.' Opp. at 12-13.) Finally, defendants claim that plaintiff has
failed to present any evidence that defendants had a policy of requiring inside loan officers to work over forty hours
a week. (Id. at 14.) The Court concludes that plaintiff has satisfied the commonality requirement for inside loan
officers employed by defendants between December 22, 2003 and J une 2010 who were paid on a draw against
commission basis. 3
Defendants do not dispute that whether the Proposed [*12]Class is exempt or not from the NYLL's wage
requirements is a common issue to the entire class; instead, what defendants really argue is that individualized,
rather than common, issues predominate in proving whether the exemption applied. However, commonality is not
defeated because some individualized proof may be necessary to assess whether defendants properly deemed the
Proposed Class exempt. See, e.g., Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008)
(concluding that whether or not the exemption applied to the class was a common issue despite defendant's
assertion that an individualized inquiry would be necessary); In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 240
(holding that common issues of law exist even if there exists "some factual variation among class members' specific
grievances").
In the instant case, as discussed below, there are clearly common issues of law and fact that satisfy the
commonality requirement. First, with respect to common legal issues, the question of whether an exemption applies
to the NYLL's wage requirements is a legal issue that is common to the entire class. Moreover, in connection with
that issue, defendants rely on a Department [*13] of Labor opinion letter, which is an issue that is also common to
the entire class.
Second, there are also common elements of proof with regard to the applicability of the exemption. For example,
there is a single document that describes the loan officer's position. (Mellk Affirm. Ex 2.F.) This job description
indicates that the duties of an inside loan officer include speaking to potential customers, identifying “appropriate
loan programs, quot[ing] rates, tak[ing] application[s] via telephone, mail, or in person (at borrowers home, their
office or in our office) . . . submit{ting] application[s] to processing and work[ing] with borrower[s] and processing as
a liaison . . . [rleport[ing] to Team Leader[s] and/or Sales Manager{s]" and getting trained. (Id. | 3.) Though
defendants argue that in fact the job duties for the inside loan officers varied greatly person to person, "this job
description is unquestionably probative of those actual duties. Thus, interpreting whether the duties described in
this document are consistent with [the exemption] is a relevant question common to all class members." 4
Damassia, 250 F.R.D. at 156-57. Similarly, defendants have submitted affidavits regarding [*14]the basis for
classifying the Proposed Class as exempt (see, e.g., Mellk Affirm. Ex 2 9 4-6 (Aff. of Mindy Stern, Senior Vice
2The Court does not address defendants' arguments with respect to team leaders and outside loan officers. (Defs.' Opp. at 11-
12.) In his reply, Han conceded that the Proposed Class should be limited to inside loan officers. (Pl.'s Reply at 1.)
Consequently, the Court's analysis is specific to inside loan officers
3 Plaintiff concedes that loan officers employed after J une 2010 should not be part of the class. (Pl.'s Reply at 1.) Thus, the Court
does not address defendants' arguments for why loan officers employed after J une 2010 should be excluded from the class.
(Defs.' Opp. at 12-13.)
4The Court notes that there are a number of affidavits from inside loan officers describing their job duties in a similar fashion.
The Court addresses these affidavits in detail under the predominance analysis below.(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
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President and Director of Human Resources)), so that the "appropriate interpretation of this evidence is a question
that is common among all class members." 5 Damassia, 250 F.R.D. at 157.
Additionally, the Court concludes that there is evidence defendants had a policy requiring inside loan officers—not
just Han—to work over forty hours a week. (See, e.g., Mellk. Affirm. Ex. 4 § 19 (Senior Loan Officer J ustin
Greenberg ("Greenberg") on average worked forty to forty-five hours per week and occasionally fifty hours per
week); Ex. 6 4 18 (Senior Loan Officer Brian Bates ("Bates") on average worked forty-five hours per week and
occasionally fifty hours per week); Ex. 7 4 17 (Loan Officer J amey Lacey ("Lacey") on average worked forty to forty-
five hours per week and occasionally forty-eight).)
Furthermore, the Court agrees with plaintiff that the alleged injuries of the Proposed Class derive from the same
course of conduct based on a draw against commission payment scheme. However, the Proposed Class must be
limited to those inside loan officers employed between December 22, 2003 and J une 2010 who were paid on a
draw against commission basis. ® Defendants argue that inside loan officers working prior to J uly of 2007 do not
share any questions [*16] of law or fact in common with the rest of the Proposed Class because defendants began
to pay a guaranteed draw against commission salary on J uly 27, 2007. (Defs.' Opp. at 3, 13.) However, defendants
do not actually explain how inside loan officers were compensated prior to J uly 27, 2007. Furthermore, affidavits
from inside loan officers employed by defendants prior to J uly 2007 suggest that they were also paid a draw against
commission. 7 (See, e.g., Mellk Affirm. Ex. 4 {1 1, 12 (Greenberg was employed as a Senior Loan Officer since
September of 2006 and "until J une 2010" he was paid a draw against commission); Ex. 6 {1 1, 10 (Bates was
employed as a Senior Loan Officer since "late 2006" and “until June 2010" he was paid a draw against
commission).)
In sum, the Court concludes that there are common issues of law and fact based on the allegations in the Amended
[*18] Complaint as well as based on affidavits and declarations submitted in connection with this motion. The issue
of whether or not the Proposed Class was properly deemed exempt from the NYLL is common to all class members
as are some elements of proof essential to that analysis. Furthermore, the compensation scheme and policy to
work over forty hours a week is applicable to all Proposed Class members from December 22, 2003 and J une
2010. Under these circumstances, the commonality requirement is satisfied.
3. Typicality
5 Defendants argue that the claims of the Proposed Class are not common for the additional reason that "many" inside loan
officers earned over $100,000 so that they would be exempt under the FLSA from overtime payments to the extent they
“customarily and regularly" performed the duties of an administrative employee. (Defs.' Opp. at 14 n. 8.) The Court concludes
that commonality (and predominance) is not defeated even if there are "many" such inside loan officers. Ultimately, whether or
not these inside loan officers qualify for this exemption will depend on whether or not they performed administrative duties as
defined under the FLSA. That is at the crux of the administrative [*15] exemption. Common issues predominate for the same
reasons discussed infra in Section II.A.5.i with respect to the administrative exemption
© Plaintiff conceded that inside loan officers employed by defendants after J une 2010 should not be part of the Proposed Class.
(Pl.'s Reply at 1.) Defendants argue that the class period should end in April 2010, because they started paying hourly rates to
their inside loan officers in May 2010. (Defs.' Opp. at 2, 4-5, 13.) The Court concludes that the cut-off for class membership
should be in J une 2010. Although defendants state that they [*17] changed their compensation scheme in May and began
paying inside loan officers an hourly rate including overtime, it is unclear when in May that change took effect. Previously, inside
loan officers were paid on a bi-weekly basis and it is unclear whether some inside loan officers received pay on a draw against
commission basis into the month of J une. Therefore, in an abundance of caution, the Court limits the time period to J une 2010.
7 Plaintiff suggests, in the alternative, that even if inside loan officers were not paid on a draw against commission basis prior to
July 2007, they should still be part of the Proposed Class. (PI.'s Reply at 2.) As indicated supra, there is no evidence that inside
loan officers working for defendants prior to J uly 2007 were paid under a scheme other than draw against commission. To the
extent plaintiff wants to include any such individuals in the Proposed Class, the Court denies the request. Inside loan officers
paid under a scheme other than a draw against commission are not similarly situated to plaintiff and other Proposed Class
members.(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022
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Plaintiff's claims must be typical of the class. Fed. R. Civ. P. 23(a)(3). This requirement is satisfied if the plaintiff
shows that "the representative plaintiff's claims are based on the same legal theory and arise from the same
practice or course of conduct as the other class members." In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 241.
"[W ]here a putative class representative is subject to unique defenses which threaten to become the focus of the
litigation," certification for the class is improper because he or she can no longer act in the best interest of the class.
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000). A primary underlying
[*19] concern is the "danger that absent class members will suffer if their representative is preoccupied with
defenses unique to it." Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 180 (2d Cir. 1990).
In short, the question for the Court, at this stage, is whether "the named plaintiff's claim and the class claims are so
inter-related that the interest of the class members will be fairly and adequately protected in their absence."
Caridad, 191 F.3d at 291 (noting that commonality and typicality "tend to merge"). Based on the allegations in the
amended complaint, the claims of the proposed class representative Han are inter-related, and common issues of
law and fact exist between the proposed class representative and the rest of the Proposed Class. See In re
Playmobil Antitrust Litig., 35 F. Supp. 2d at 241.
Defendants argue that the representative plaintiffs claims are factually distinguishable from the rest of the
Proposed Class. In particular, defendants contend that Han was paid under a different scheme from inside loan
officers after May 2010 and prior to J uly 2007. 8 For the reasons discussed supra, the Proposed Class should be
limited to inside loan officers employed from [*20] December 22, 2003 until J une 2010 who were paid on a draw
against commission basis. See supra II.A.2, note 6-7. Han's claims are typical of Proposed Class members during
that time period because Han was paid on a draw against commission basis, as were inside loan officers employed
by defendants between July 2007 and June 2010. Id. As previously noted, there is sufficient evidence to
demonstrate that inside loan officers working prior to J uly 2007 were also paid on this basis. Id.
Accordingly, the Court concludes that the class representative's claims are typical of the Proposed Class and this
requirement is met. See DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) ("The burden of
demonstrating typicality is fairly easily met so long as other class members have claims similar to the named
plaintiff."); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993); In re Oxford Health Plans, Inc., Sec. Litig., 191
F.R.D. 369, 375 (S.D.N.Y. 2000).
4. [*21] Adequacy of Representation
"The final prerequisite for class certification under Rule 23(a) is that the representative parties will fairly and
adequately protect the interests of the class." Harris v. Initial Sec., Inc., No. 05 Civ. 3873 (GBD), 2007 U.S. Dist.
LEXIS 18397, at *19 (S.D.N.Y. Mar. 7, 2007) (quotation marks omitted). "This requires that the proposed class
representative . . . have an interest in vigorously pursuing the claims of the class, and .. . have no interests
antagonistic to the interests of other class members." Id. (quotation marks omitted) (citing Denney v. Deutsche
Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)). "A class representative is a fiduciary to the class and bears a
responsibility to comply with discovery requests, to possess a basic knowledge of the facts, and to participate to
some minimal degree in the lawsuit 'to ensure that the party is not simply lending his name to a suit controlled
entirely by the class attorney." In re Gaming Lottery Sec. Litig., 58 F. Supp. 2d 62, 76 (S.D.N.Y. 1999) (citations
omitted).
In determining whether plaintiff can adequately represent the interests of the class, courts are free to consider the
honesty and trustworthiness [*22] of the class representative. See Savino v. Computer Credit Inc., 173 F.R.D. 346,
353 (E.D.N.Y. 1997). Where the court finds the class representative is not credible, adequacy of representation is
absent. Compare Kline v. Wolf, 702 F.2d 400, 403 (2d Cir. 1983) (upholding decision to deny role as class
representatives when "testimony on an issue critical to one of their two causes of action was subject to sharp
8To the extent defendants also argue that Han's claims as an inside loan officer are not typical of those by team leaders and
outside loan officers, it is clear that plaintiff conceded the Proposed Class should just be limited to inside loan officers. See supra
note 2.(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022
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attack"); with Cromer Fin. Ltd. v. Berger, 205 F.R.D. 113, 125 (S.D.N.Y. 2001) (refusing to bar class representatives
on grounds of credibility where it was not clear that plaintiffs lied or fabricated testimony).
Finally, the Court must also inquire as to whether plaintiffs' counsel is "qualified, experienced and generally able to
conduct the litigation." Trautz v. Weisman, 846 F. Supp. 1160, 1167 (S.D.N.Y. 1994).
Defendants do not dispute counsel for plaintiff's ability to conduct the litigation and the Court concludes that counsel
is qualified, experienced and able to conduct the litigation. (See Lee Decl. (Docket 48).) Defendants do, however,
object to the proposed class representative. Defendants contend that Han cannot adequately represent the class
because: (1) he has failed [*23] to cooperate during discovery; and (2) he waived trial by jury in the Compensation
Agreement. (Defs.' Opp. at 16-18.) As set forth below, although defendants challenge whether Han is an adequate
class representative, the Court does not find any of the arguments to be persuasive.
Defendants argue that plaintiff refused to appear for a deposition and that plaintiff's discovery responses were
grossly deficient. (Defs.' Opp. at 17; Mellk Affirm. Ex. 12 (outlining the deficiencies in the discovery responses).)
However, the problems with discovery asserted by defendants in the instant case do not rise to the level of "glaring
violations of the discovery rules," as required for Han to be considered an inadequate class representative. In re AM
Int'l, Inc. Sec. Litig., 108 F.R.D. 190, 197 (S.D.N.Y. 1985). It is apparent that Han's deposition was scheduled at
least at one point, but plaintiff Chang was deposed on the date originally reserved for Han's deposition because
defendants canceled Chang's earlier deposition date. (Pl.'s Reply at 4-5, Ex. A-1 & A-2.) Thus, some attempt to
schedule Han's deposition was made. Furthermore, it appears that the failure to re-schedule a deposition of Han
was [*24]a result of a disagreement over the reproduction of discovery materials by defendants to plaintiffs in a
more accessible format and defendants' unwillingness to schedule the depositions of their witnesses. (PI.'s Reply at
4.) With respect to allegations of deficient discovery responses, the defendants identified the deficiencies in a letter
sent to plaintiffs dated September 23, 2010. (Mellk Affirm. Ex. 12.) However, the parties agreed to suspend
discovery at the end of November to pursue settlement discussions (PI.'s Reply Ex. A-5), which did not lead to the
resolution of the case. Discovery resumed in mid-February 2011 (Docket 52), but was once again stayed on March
10, 2011, pending the resolution of the parties' cross-motions for summary judgment. (Docket 59.) Given this time-
table and the fact that an attempt to schedule Han's deposition was made, the Court concludes that plaintiff's failure
to correct the various alleged deficiencies identified by defendants in their September 23 letter and motion to
compel (which has yet to be resolved (Docket 58)), do not rise to the level of "glaring violations" of the discovery
process. As a result, the Court
Preview
(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Exhibit AINDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Greenky, Ross M. From: Greenky, Ross M. Sent: Friday, July 29, 2022 4:37 PM To: rsattiraju@s-tlawfirm.com Cec: Sciotti, Michael J.; Capungan, Regine Sarah C. Subject: Flores/Berrios et al. v. Dinosaur Restaurants Attachments: First Set of Interrogatories to Plaintiff Berrios.PDF; First Set of Interrogatories to Plaintiff Flores.PDF; First Request for Production of Documents to Plaintiff Berrios.PDF; First Request for Production of Documents to Plaintiff Flores.PDF; Notice of Deposition for Plaintiff Flores.PDF; Notice of Deposition for Plaintiff Berrios.PDF; Answer to Complaint.PDF Dear Mr. Sattiraju: Attached please find the following: 1. Defendants’ Answer to the Complaint; 2. Notice of Deposition Upon Oral Examination of Deanna Flores; 3. Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Deanna Flores with HIPAA Authorization; 4. Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Deanna Flores; 5. Notice of Deposition Upon Oral Examination of Ashleyann Berrios; 6. Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Ashleyann Berrios with HIPAA Authorization; 7. Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Ashleyann Berrios. Copies of these attachments are also being sent to you by regular mail. Further, until our filing today, Dinosaur was unaware of the second class action filed by the same Plaintiffs and your office, Index No. 656614/2022. Contrary to the filed Affidavit of Service, Dinosaur has not been served with a copy of this Complaint. Accordingly, we request an extension to August 31, 2022 for our deadline to answer this Complaint. If such an extension is amenable to you, we will provide a joint stipulation for review and execution. If you have any questions, please feel free to call at (315) 425-2702. Ross M. Greenky - Counsel he/him/his @ Syracuse &,(315) 425-2702 (315) 263-0338(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Exhibit B(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM CEO eso e te 2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Greenky, Ross M. From: Sent: To: Ce: Subject: Attachments: Greenky, Ross M. Wednesday, August 31, 2022 3:51 PM rsattiraju@s-tlawfirm.com Sciotti, Michael J.; Capungan, Regine Sarah C. Wage and Hour Complaint: Berrios/Flores et al v. Dinosaur Restaurants Answer (e-filed).PDF; First Req. for Prod of Docs to Plaintiff Flores.PDF; First Set of Interrogatories to Plaintiff Flores.PDF; First Req. for Prod of Docs to Plaintiff Berrios.PDF; First Set of Interrogatories to Plaintiff Berrios.PDF; Notice of Deposition for Plaintiff Flores.PDF; Notice of Deposition for Plaintiff Berrios.PDF Dear Mr. Sattiraju: Attached please find the following: i 2. 7. Defendants’ Answer to the Complaint; Notice of Deposition Upon Oral Examination of Deanna Flores; Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Deanna Flores; Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Deanna Flores; Notice of Deposition Upon Oral Examination of Ashleyann Berrios; Defendant Dinosaur Restaurant, LLC’s First Request for Production of Documents to Ashleyann Berrios; Defendant Dinosaur Restaurant, LLC’s First Set of Interrogatories to Ashleyann Berrios. Copies of these attachments are also being sent to you by regular mail. If you have any questions, please feel free to call at (315) 425-2702. Ross M. Greenky - Counsel he/him/his @ Syracuse &,(315) 425-2702 (315) 263-0338(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Exhibit CINDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Greenky, Ross M. From: Edward Herban Sent: Wednesday, November 30, 2022 11:45 AM To: Greenky, Ross M.; Ravi Sattiraju Ce: Sciotti, Michael J; Carol Stenger Subject: RE: Flores/Berrios v Dinosaur Restaurant We agree. Thank you for reaching out. -Ed Edward J. Herban, Esq. SATTIRAJU & THARNEY, LLP 50 Millstone Road Building 300, Suite 202 East Windsor, NJ 08520 Office: (609) 469-2110 Direct Dial: (609) 469-2114 Email: eherban@s-tlawfirm.com From: Greenky, Ross M. Sent: Wednesday, November 30, 2022 11:39 AM To: Edward Herban ; Ravi Sattiraju Ce: Sciotti, Michael J. ; Carol Stenger Subject: RE: Flores/Berrios v Dinosaur Restaurant Ed, We write to request an extension until December 9, 2022 for both sides to provide discovery responses. We are diligently working on the responses, but are awaiting some additional documents and information. Please let us know if you agree to this mutual extension. From: Greenky, Ross M. Sent: Thursday, November 3, 2022 12:37 PM To: Edward Herban ; Ravi Sattiraju Ce: Sciotti, Michael J. ; Carol Stenger Subject: RE: Flores/Berrios v Dinosaur Restaurant Ed, That’s fine with us. From: Edward Herban Sent: Thursday, November 3, 2022 11:11 AM To: Greenky, Ross M. ; Ravi Sattiraju Cc: Sciotti, Michael J. ; Carol Stenger Subject: RE: Flores/Berrios v Dinosaur RestaurantINDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 We are diligently working on Plaintiffs’ responses to your client’s discovery demands. That said, in light of your request, | suggest we agree that all discovery responses (Defendant to Plaintiffs/Plaintiffs to Defendant) will be mutually due on November 30. This should give us all enough time to complete the tasks. Obviously, the Thanksgiving holiday in between may impact the deadline, but | think it’s an achievable goal for both sides. Please let me know your thoughts. -Ed Edward J. Herban, Esq. SATTIRAJU & THARNEY, LLP Direct Dial: (609) 469-2114 Mobile: Email: eherban@s-tlawfirm.com From: Greenky, Ross M. Sent: Thursday, November 3, 2022 10:54 AM To: Edward Herban ; Ravi Sattiraju Cc: Sciotti, Michael J. ; Carol Stenger Subject: RE: Flores/Berrios v Dinosaur Restaurant Mr. Herban and Mr. Sattiraju, Following up on my e-mail below. Thank you. Ross M. Greenky Pronouns: he/him/his Counsel BARCLAY DAMON" Barclay Damon Tower + 125 East Jefferson Street * Syracuse, NY 13202 D: (315) 425-2702 + F: (315) 703-6246 « C: (315) 263-0338 E: rgreenky@barclaydamon.com www.barclaydamon.com + vCard « Profile Witt) BD Listen to the Labor & Employment Podcast This electronic mail transmission is intended only for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message.INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 From: Greenky, Ross M. Sent: Thursday, October 27, 2022 10:43 AM To: Edward Herban ; Ravi Sattiraju Cc: Sciotti, Michael J. ; Carol Stenger Subject: RE: Flores/Berrios v Dinosaur Restaurant Mr. Herban and Mr. Sattiraju, I write to request a 3-week extension of time for Defendant to respond to Plaintiffs’ first set of discovery demands. Please let us know if you consent to our request. In addition, Defendant served its First Request for Production of Documents and First Set of Interrogatories to Plaintiffs Deanna Flores and Ashleyann Berrios on July 29, 2022 in the discrimination case and August 31, 2022 in the wage and hour case. Please let us know the status of Plaintiffs’ responses. Thank you. From: Carol Stenger Sent: Wednesday, September 28, 2022 1:58 PM To: Greenky, Ross M. ; Sciotti, Michael J. Cc: Edward Herban ; Ravi Sattiraju Subject: Flores/Berrios v Dinosaur Restaurant Counsel, On behalf of Edward Herban, please see the attached correspondence and discovery requests on behalf of the plaintiffs. Thank you for your attention to this matter. Carol Carol Stenger SATTIRAJU & THARNEY, LLP 50 Millstone Road Building 300, Suite 202(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM None acee NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 East Windsor, NJ 08520 Office: (609) 469-2110 Direct Dial (609) 469-2118 Email: cstenger@s-tlawfirm.com(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Exhibit D(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Cruz v Town Sports Intl. Supreme Court of New York, New York County January 29, 2013, Decided; February 4, 2013, Filed INDEX NO 600695/05, INDEX NO. 602024/07 Reporter 2013 N.Y. Misc. LEXIS 449 *; 2013 NY Slip Op 30233(U) * [1] SARAH CRUZ, J ESSIE MARTINEZ, ANGELA ROSINSKI, ANGEL AULET, SCOTT ALLEN, NICOLE SASSO, ROBERT LOPRESTI and PATRICK MAURICE on behalf of themselves and all others similarly situated, Plaintiffs, -against- TOWN SPORTS INTERNATIONAL, d/b/a NEW YORK SPORTS CLUB, DefendantSARAH CRUZ, ANGELA ROSINSKI, SCOTT ALLEN, NICOLE SASSO, ROBERT LOPRESTI, and PATRICK MAURICE, on behalf of themselves and all others similarly situated, Plaintiffs, -against- TOWN SPORTS INTERNATIONAL, d/b/a NEW YORK SPORTS CLUB, Defendant. Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS Subsequent History: Affirmed by Cruz v. Town Sports Intl., 2014 N.Y. App. Div. LEXIS 2480 (N.Y. App. Div. 1st Dep't, Apr. 15, 2014) Prior History: Cruz v. Town Sports Intl., 21 Misc. 3d 1137(A), 2008 N.Y. Misc. LEXIS 7060 (2008) Judges: [*1] PRESENT: HON. PAUL WOOTEN. Opinion by: PAUL WOOTEN Opinion [2] Motion sequence numbers 003 and 004 in the herein action (the 2005 action) and motion sequence numbers 002 and 003 in the action with index number 602024/2007 (the 2007 action) are hereby consolidated for purposes of disposition. Motion sequence 003 in the 2005 action and motion sequence number 002 in the 2007 action are identical, and both seek to compel defendant Town Sports International d/b/a New York Sports Club (NYSC) to provide additional discovery. Motion sequence 004 in the 2005 action and motion sequence 003 in the 2007 action are also identical, with NYSC moving to dismiss the class claims for failure to file a class certification motion in a timely manner. Since the motions to dismiss could render the discovery motions moot, the motions to dismiss will be addressed first. BACKGROUND Plaintiffs commenced the 2005 action claiming that NYSC failed to pay its personal fitness trainers and its assistant fitness managers at the overtime rate for hours that they worked in excess of 40 hours per week. Plaintiffs sought to amend the complaint in the 2005 action to add class-wide time shaving claims, and to expand the class to include all hourly [*2] NYSC employees in New York State. Instead of amending the complaint the court suggested that plaintiffs file a separate action, which resulted in plaintiffs commencing the 2007 action. That action alleges that NYSC engaged in a practice of "time shaving," i.e., NYSC permitted its staff to regularly delete or edit hours actually worked by NYSC hourly employees from its time and payroll systems, resulting in paying the workers for fewer(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2013 N.Y. Misc. LEXIS 449, *2; 2013 NY Slip Op 30233(U), **2 hours than they actually worked. Plaintiffs further claim that NYSC has a pattern of requiring employees to work “off-the-clock," without pay. During the course of discovery, the parties have had a number of discovery disputes, and in the course of resolving them, agreed that the discovery that they engaged in was directed toward obtaining information relevant to class certification. In the discovery motions [**3] currently before the Court, plaintiffs contend that NYSC has failed to provide requested relevant information. NYSC asserts that most of the information that plaintiffs seek has already been provided, and that what has not been provided is not discoverable at this juncture. The date by which the plaintiffs' motion for class certification was to be [*3] filed was extended several times, both by stipulation and by court order. On J anuary 14, 2010, oral argument was held on the discovery motions which are currently pending before the court. On J anuary 15, 2010, NYSC presented the court with a stipulation, signed by both parties, to extend the deadline for class certification until April 28, 2010. The court so-ordered the stipulation on) anuary 27, 2010. Plaintiff's maintain that they did not receive a copy of the signed order, and were unaware that the stipulation had been so-ordered. Plaintiffs aver that they believed that no new class certification deadline had been scheduled. In September 2010, NYSC informed plaintiffs' counsel that defendant was moving to dismiss the class claims based on plaintiffs' failure to meet the class certification deadline. The dismissal motions currently before the court ensued. In the intervening time, the parties have been engaged in settlement negotiations, which have proven unsuccessful, and the motions are now ripe for disposition. DISCUSSION NYSC contends that plaintiffs failed to move for class certification before the expiration of the April 28, 2010 deadline, and plaintiffs also failed to move to [*4] extend the time within which to move. Consequently, NYSC maintains that so much of the actions that purport to be on behalf of the class of people similarly situated must be dismissed. Plaintiffs contend that they were unaware that the deadline for class certification was set at April 28, 2010, and that defendant never informed them of the so-ordered deadline. Plaintiffs' assert that NYSC should have alerted them regarding the so-ordered stipulation, and that, in any event, the Court has discretion to waive the deadline in the interests of justice. Plaintiffs' only explanation for why [*4] they were unaware of the so-ordered stipulation, when plaintiffs' counsel had signed that stipulation, amounts to law office failure. They do not offer any basis for their suggestion that NYSC had an obligation to inform them that the court so-ordered the signed stipulation. Plaintiffs also maintain that the delay was in part because they were waiting for a decision on the discovery motions, which decision was necessary before they could move for class certification. The Court notes that the stipulation to extend the time within which to file the motion for class certification was signed while the discovery [*5] motions were pending. The early deadline to file the motion for class certification had expired. CPLR 902 provides that "[w]ithin sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine whether it is to be so maintained." The parties may stipulate to extend that time period, or the court may order such extension. However, in the absence of an extension, the deadline set forth is mandatory (O'Hara v Del Bello, 47 NY 2d 363, 368-369, 391 N.E.2d 1311, 418 N.Y.S.2d 334 [1979]; Shah v Wilco Sys., Inc., 27 AD3d 169, 173, 806 N.Y.S.2d 553 [1st Dept. 2005]). While it is true that the court has discretion to deem a class certification motion timely, or to grant a motion to extend the time within which to file a certification motion even after the deadline has passed, the plaintiff must show good cause for such relief (see Argento v Wal-Mart Stores, Inc., 66 AD3d 930, 932, 888 N.Y.S.2d 117 [2d Dept 2009]; Matros Automated Elec. Const. Corp. v Libman, 37 AD3d 313, 830 N.Y.S.2d 127 [1st Dept 2007]; Shah, 27 AD3d at 173). Here, plaintiffs have not only failed to timely bring a motion for class certification, but they have not yet brought one at all. [*6] While it is true that they claim that they need further discovery in order to obtain the information they need to adequately respond to the expected opposition from defendant, they have also failed to move to extend the time within which to bring the class certification motion, which is required when the discovery obtained is(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2013 N.Y. Misc. LEXIS 449, *6; 2013 NY Slip Op 30233(U), **4 inadequate to bring a class certification motion (see Meraner v Albany Med. Ctr., 211 AD2d 867, 868, 621 N.Y.S.2d 208 [3d [*5] Dept 1995)). In fact, in pointing out that the court has discretion to extend the time within which to move for class certification, plaintiffs discuss this discretion with reference to an application for extension of time. Here, there has been no such application. Thus, plaintiffs ask the Court to deny NYSC's motion to dismiss without seeking an extension of the deadline to move for class certification. In all the cases cited to by plaintiffs in support of their position, the parties who sought a waiver of the deadline for class certification had already brought a class certification motion, which was untimely in the absence of a waiver (see Argento, 66 AD3d at 932; Galdamez v Biordi Constr. Corp., 50 AD3d 357, 358, 855 N.Y.S.2d 104 [1st Dept 2008]; Matros Automated Elec. Const. Corp., 37 AD3d at 313; [*7] Shah, 27 AD3d at 173). Since there is no motion or cross-motion currently pending before the Court for class certification, which would give the Court the option to grant plaintiffs a waiver, defendant's motion to dismiss must be granted. Consequently, defendant's motion to dismiss the class claims is granted. In view of this conclusion, plaintiffs' motions seeking further discovery with respect to class certification is denied as moot. CONCLUSION Accordingly, itis hereby ORDERED that defendant's motions (motion sequence number 003 in the action with index number 602024/07 and motion sequence number 004 in the action with index number 600695/05) are granted and the class claims of those actions are dismissed; and it is further; ORDERED that plaintiffs' motions (motion sequence number 002 in action 602024/07 and motion sequence number 003 in action 600695/05) are denied as moot; and it is further; ORDERED that defendant is directed to serve a copy of this Order with Notice of Entry upon all parties; and it is further, ORDERED that the remainder of the actions shall continue, and all remaining parties [6] are directed to appear for a Status Conference on March 20, 2013 at 11:00 a.m. at 60 Centre [*8] Street, Room 341, Part 7. This Constitutes the Decision and Order of the Court. Dated: 1/29/13 /s/ Paul Wooten PAUL WOOTEN J.S.C. End of Document(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 Han v. Sterling Nat'l Mortg. Co. United States District Court for the Eastern District of New York September 14, 2011, Decided; September 14, 2011, Filed No 09-CV-5589 (J FB) (AKT) Reporter 2011 U.S. Dist. LEXIS 103453 *; 2011 WL 4344235 JOSEPH HAN & TONY CHANG, Plaintiffs, versus STERLING NATIONAL MORTGAGE COMPANY, INC., J ONATHAN GOLDBERG, ADAM DE] AK & MICHAEL BIZENOV, Defendants. Counsel: [*1] For) oseph Han, Tony Chang, on behalf of themselves and others similarly situated, Plaintiffs: C.K. Lee, LEAD ATTORNEY, New York, NY; Robert L. Kraselnik, LEAD ATTORNEY, Kraselnik & Lee, PLLC, New York, NY. For Sterling National Mortgage Company, Inc., J onathan Goldberg, Adam Dejak, Michael Bizenov, Defendants: Paul}. Siegel, LEAD ATTORNEY, Ana Shields, Wendy J . Mellk, J ackson Lewis, LLP, Melville, NY. Judges: ] OSEPH F. BIANCO, United States District } udge. Opinion by: J OSEPH F. BIANCO Opinion MEMORANDUM AND ORDER J OSEPH F. BIANCO, District} udge: Plaintiffs J oseph Han and Tony Chang (hereinafter "plaintiffs") commenced this action on behalf of themselves and others similarly situated on December 22, 2009, seeking unpaid minimum wages and overtime compensation from defendants Sterling National Mortgage Company, Jonathan Goldberg, Adam Dejak and Michael Bizenov (collectively, "defendants"), pursuant to the Fair Labor Standards Act of 1938, as amended, ("FLSA"), 29 U.S.C. § 201, et seq., as well as New York Labor Law ("NYLL"). Plaintiff J oseph Han ("Han" or "plaintiff') has moved, pursuant to Fed. R. Civ. P. 23, to certify a class for violations of the NYLL and for the appointment of class counsel. For the reasons that [*2] follow, the motion is granted. However, the scope of such notice shall be limited to only those individuals who are "similarly situated" to the named plaintiff, as set forth in this Memorandum and Order. |. BACKGROUND AND PROCEDURAL HISTORY A. The Complaint According to the complaint, defendant Sterling National Mortgage Company, Inc. ("Sterling") is a mortgage bank that provides mortgage banking services to consumers in New York State. (Am. Compl. 9 7, 18.) Its headquarters are located in Great Neck, New York and it has two additional offices in Staten Island, New York and Forest Hills, New York. (Id. 91 7, 18.) Defendant J onathan Goldberg is the Assistant Vice President of Sterling. (Id. 4 10.) Defendant Adam Dejak ("Dejak") is the Vice President of Sterling. (Id. | 9.) Defendant Michael Bizenov is Chairman or Chief Executive Officer of Sterling. (Id. 4 8.) Plaintiff alleges that he regularly worked over ten hours per day, over forty hours per week, and was paid on a salary and commission basis. (Id. (1 22-23, 25.) Plaintiff contends that he was paid below minimum wage in contravention of the FLSA and NYLL. (Id. 41 15, 27.) Plaintiff further claims that defendants had a policy of not(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2011 U.S. Dist. LEXIS 103453, *3 [*3] paying overtime wages as required under the FLSA and NYLL. (Id. {| 29.) Finally, plaintiff asserts that defendants had a policy of not paying the "spread of hours" premium for the days he worked over ten hours a day despite being mandated to do so by the NYLL. (Id. 91 31, 54.) B. Proposed Representative Plaintiff Proposed class representative Han was formerly employed as an inside loan officer by defendants from about February 2008 until August 2009 at defendants' office in Great Neck, New York. (Id. 9 18-19; Affirm of Wendy J. Mellk dated Mar. 4, 2011 ("Mellk Affirm.") Ex.2.C (Han's Inside Loan Officer Compensation Agreement ("Compensation Agreement")).) According to Han, he was compensated on a draw against commission basis. (Am. Compl. 4 25; Aff. of J oseph Han dated April 13, 2010 ("Han Aff.") 1 4; ! Mellk Affirm. Ex 2.C.) Under this scheme, he received "a draw against commission in the maximum gross amount of $1,100 bi-weekly;" the draw was "recoverable against commissions earned." (Mellk Affirm. Ex. 2.C 4/2.) Han waived any right to a jury trial to resolve disputes relating to any of the terms of his Compensation Agreement. (Mellk Affirm. Ex 2.C 19.) C. Procedural History Plaintiffs Han and Tony Chang commenced this action on December 22, 2009. Plaintiffs filed an amended complaint on February 25, 2010. On November 30, 2010 this Court granted plaintiffs' motion for conditional certification of the FLSA claim as a representative collective action pursuant to the FLSA, 29 U.S.C. § 216(b). (Docket 40.) On J anuary 12, 2011, Han filed a motion to certify a class for violations of the NYLL. Defendants filed their opposition on March 4, 2011. Plaintiff submitted his reply on March 28, 2011. The Court has fully considered the submissions and arguments of the parties. Il. DISCUSSION Han seeks certification under Fed. R. Civ. P. 23(a) and (b)(3) of a class (hereinafter "Proposed Class") of inside loan officers "who were employed by Sterling National Mortgage Company, Inc. any time between" December 22, 2003 and June 2010. (Decl. of C.K. Lee dated January 12, 2011 ("Lee Decl.") Ex. 1 at 6; Pl.'s Reply at 1.) [*5] Defendants object to the Proposed Class, arguing that common issues are not present, that Han's claims are not typical, that Han is an inadequate class representative, that common issues of law or fact do not predominate, and that a class action is not superior to individual litigation in this case. As set forth below, the Court concludes that, because the requirements of Fed. R. Civ. P. 23(a) and (b)(3) have been met, the motion for class certification and appointment of class counsel is granted. A. Applicable Law Rule 23(a) of the Federal Rules of Civil Procedure sets forth a four-part test for certifying a class: "(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 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)(1)-(4). In seeking class certification, plaintiff must first demonstrate that all of the requirements of Fed. R. Civ. P. 23(a) have been satisfied. See Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); [*6] In re VISA Check/Mastermoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir. 2001), overruled in part on other grounds by In re Initial Public Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999), overruled in part on other grounds by In re Initial Public Offering Sec. Litig., 471 F.3d 24 (2d Cir. 2006); Weil v. Long Island Sav. Bank, FSB, 200 F.R.D. 164, 168 (E.D.N.Y. 2001); In re Playmobil Antitrust Litig., 35 F. Supp. 2d 231, 238 (E.D.N.Y. 1998). Second, plaintiff must show that the 11n his declaration dated J anuary [*4] 11, 2011, which was filed in conjunction with his motion to certify a class, Joseph Han reaffirmed and incorporated his affidavit submitted to the Court on April 13, 2010. (Docket 47.) The Court therefore cites to Han's April 13 affidavit.(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2011 U.S. Dist. LEXIS 103453, *4 putative class falls within one of the three categories set forth in Rule 23(b). In re VISA Check/Mastermoney, 280 F.3d at 133. Plaintiff here seeks certification under Rule 23(b)(3). The Second Circuit recently emphasized that the district court must conduct a "rigorous analysis" to determine "that every Rule 23 requirement" is met before certifying a class. In re Initial Public Offering Sec. Litig., 471 F.3d at 33 & n. 3, 41 (citing Falcon, 457 U.S. at 160-61). "[T]here is no reason to lessen a district court's obligation to make a determination that every Rule 23 requirement is met before certifying a class just because of some or [*7] even full overlap of that requirement with a merits issue." In re Initial Public Offering Sec. Litig., 471 F.3d at 41. Thus, itis not sufficient for plaintiffs to make merely "some showing" that the requirements of Rule 23 have been met. Id. at 35-36 (citing and distinguishing Caridad, 191 F.3d at 292 and In re VISA Check/MasterMoney Antitrust Litig., 280 F.3d at 134-35). Instead, the following standard applies to class certification motions in this circuit: (1) a district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met; (2) such determinations can be made only if the judge resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met; (3) the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement; (4) in making such determinations, a district judge should not assess any [*8] aspect of the merits unrelated to a Rule 23 requirement; and (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits. In re Initial Public Offering Sec. Litig., 471 F.3d at 41. The Court now turns to the Rule 23 analysis in the instant case within the legal framework articulated by the Second Circuit. 1. Numerosity Rule 23(a)(1) requires that the proposed class be "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "Impracticability means difficulty or inconvenience of joinder [not]. . . impossibility of joinder," In re Blech Sec. Litig., 187 F.R.D. 97, 103 (S.D.N.Y. 1999), and the Second Circuit has observed that "numerosity is presumed at a level of 40 members." Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995), cert. denied, 515 U.S. 1122, 115 S. Ct. 2277, 132 L. Ed. 2d 281 (1995) (citing 1 Newberg on Class Actions § 3.05 (2d ed. 1985)); see also Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 466 (S.D.N.Y. 2005) [*9] ("Numerosity is presumed when a class consists of forty or more members."). In the instant case, the numerosity requirement is clearly satisfied. Defendants do not contest in their opposition papers that this requirement is met. Indeed, plaintiff alleges that the class would exceed 200 loan officers. (PI.'s Mot. at 5.) Numerosity, therefore, is easily satisfied. 2. Common Questions of Law & Fact Rule 23 mandates that "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "[C Jourts have liberally construed the commonality requirement to mandate a minimum of one issue common to all class members." Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198-99 (S.D.N.Y. 1992). Thus, a single common issue of law will satisfy the commonality requirement. Monaco v. Stone, 187 F.R.D. 50, 61 (E.D.N.Y. 1999). A common issue of law will be found if plaintiffs "identify some unifying thread among the members' claims... ." Id. A court may find a common issue of law even though there exists "some factual variation among class members' specific grievances ... ." In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 240. "The commonality requirement may [thus] be met when individual [*10] circumstances of class members differ, but ‘their injuries derive from a unitary course of conduct." Velez v. Majik Cleaning Serv., Inc., 03 Civ. 8698 (SAS), 2005 U.S. Dist. LEXIS 709, at *9 (S.D.N.Y. Jan. 18, 2005) (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)). Plaintiff alleges that all of the Proposed Class members were paid in the same manner based on a “draw" against future commission. (PI.'s Mot. at 5-6.) Plaintiff also asserts that, as a result, whether or not the Proposed Class was(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2011 U.S. Dist. LEXIS 103453, *10 paid a salary in accordance with the NYLL is an issue of law common to all the members. (Id.) In addition, plaintiff argues that defendants had a policy of requiring the Proposed Class to work over forty hours a week. (PI.'s Reply at 2-3.) In opposing certification, defendants assert that the Proposed Class performed their jobs differently so that an individualized inquiry would be necessary to assess whether they were properly considered exempt by defendants from the otherwise applicable NYLL requirements. 2 (Defs.' Opp. at 14-15.) Defendants specifically rely on the administrative exemption to the FLSA, which is equally applicable to the NYLL. See Ramos v. Baldor Specialty Foods, Inc., No. 10 Civ. 6271 (RMB), 2011 U.S. Dist. LEXIS 66631, 2011 WL 2565330, at *5 n. 3 (S.D.N.Y. J une 16, 2011). [*11] Defendants further contend that the class should be limited to loan officers employed by defendants between J uly 2007 and April 2010. (Defs.' Opp. at 12-13.) Finally, defendants claim that plaintiff has failed to present any evidence that defendants had a policy of requiring inside loan officers to work over forty hours a week. (Id. at 14.) The Court concludes that plaintiff has satisfied the commonality requirement for inside loan officers employed by defendants between December 22, 2003 and J une 2010 who were paid on a draw against commission basis. 3 Defendants do not dispute that whether the Proposed [*12]Class is exempt or not from the NYLL's wage requirements is a common issue to the entire class; instead, what defendants really argue is that individualized, rather than common, issues predominate in proving whether the exemption applied. However, commonality is not defeated because some individualized proof may be necessary to assess whether defendants properly deemed the Proposed Class exempt. See, e.g., Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008) (concluding that whether or not the exemption applied to the class was a common issue despite defendant's assertion that an individualized inquiry would be necessary); In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 240 (holding that common issues of law exist even if there exists "some factual variation among class members' specific grievances"). In the instant case, as discussed below, there are clearly common issues of law and fact that satisfy the commonality requirement. First, with respect to common legal issues, the question of whether an exemption applies to the NYLL's wage requirements is a legal issue that is common to the entire class. Moreover, in connection with that issue, defendants rely on a Department [*13] of Labor opinion letter, which is an issue that is also common to the entire class. Second, there are also common elements of proof with regard to the applicability of the exemption. For example, there is a single document that describes the loan officer's position. (Mellk Affirm. Ex 2.F.) This job description indicates that the duties of an inside loan officer include speaking to potential customers, identifying “appropriate loan programs, quot[ing] rates, tak[ing] application[s] via telephone, mail, or in person (at borrowers home, their office or in our office) . . . submit{ting] application[s] to processing and work[ing] with borrower[s] and processing as a liaison . . . [rleport[ing] to Team Leader[s] and/or Sales Manager{s]" and getting trained. (Id. | 3.) Though defendants argue that in fact the job duties for the inside loan officers varied greatly person to person, "this job description is unquestionably probative of those actual duties. Thus, interpreting whether the duties described in this document are consistent with [the exemption] is a relevant question common to all class members." 4 Damassia, 250 F.R.D. at 156-57. Similarly, defendants have submitted affidavits regarding [*14]the basis for classifying the Proposed Class as exempt (see, e.g., Mellk Affirm. Ex 2 9 4-6 (Aff. of Mindy Stern, Senior Vice 2The Court does not address defendants' arguments with respect to team leaders and outside loan officers. (Defs.' Opp. at 11- 12.) In his reply, Han conceded that the Proposed Class should be limited to inside loan officers. (Pl.'s Reply at 1.) Consequently, the Court's analysis is specific to inside loan officers 3 Plaintiff concedes that loan officers employed after J une 2010 should not be part of the class. (Pl.'s Reply at 1.) Thus, the Court does not address defendants' arguments for why loan officers employed after J une 2010 should be excluded from the class. (Defs.' Opp. at 12-13.) 4The Court notes that there are a number of affidavits from inside loan officers describing their job duties in a similar fashion. The Court addresses these affidavits in detail under the predominance analysis below.(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2011 U.S. Dist. LEXIS 103453, *14 President and Director of Human Resources)), so that the "appropriate interpretation of this evidence is a question that is common among all class members." 5 Damassia, 250 F.R.D. at 157. Additionally, the Court concludes that there is evidence defendants had a policy requiring inside loan officers—not just Han—to work over forty hours a week. (See, e.g., Mellk. Affirm. Ex. 4 § 19 (Senior Loan Officer J ustin Greenberg ("Greenberg") on average worked forty to forty-five hours per week and occasionally fifty hours per week); Ex. 6 4 18 (Senior Loan Officer Brian Bates ("Bates") on average worked forty-five hours per week and occasionally fifty hours per week); Ex. 7 4 17 (Loan Officer J amey Lacey ("Lacey") on average worked forty to forty- five hours per week and occasionally forty-eight).) Furthermore, the Court agrees with plaintiff that the alleged injuries of the Proposed Class derive from the same course of conduct based on a draw against commission payment scheme. However, the Proposed Class must be limited to those inside loan officers employed between December 22, 2003 and J une 2010 who were paid on a draw against commission basis. ® Defendants argue that inside loan officers working prior to J uly of 2007 do not share any questions [*16] of law or fact in common with the rest of the Proposed Class because defendants began to pay a guaranteed draw against commission salary on J uly 27, 2007. (Defs.' Opp. at 3, 13.) However, defendants do not actually explain how inside loan officers were compensated prior to J uly 27, 2007. Furthermore, affidavits from inside loan officers employed by defendants prior to J uly 2007 suggest that they were also paid a draw against commission. 7 (See, e.g., Mellk Affirm. Ex. 4 {1 1, 12 (Greenberg was employed as a Senior Loan Officer since September of 2006 and "until J une 2010" he was paid a draw against commission); Ex. 6 {1 1, 10 (Bates was employed as a Senior Loan Officer since "late 2006" and “until June 2010" he was paid a draw against commission).) In sum, the Court concludes that there are common issues of law and fact based on the allegations in the Amended [*18] Complaint as well as based on affidavits and declarations submitted in connection with this motion. The issue of whether or not the Proposed Class was properly deemed exempt from the NYLL is common to all class members as are some elements of proof essential to that analysis. Furthermore, the compensation scheme and policy to work over forty hours a week is applicable to all Proposed Class members from December 22, 2003 and J une 2010. Under these circumstances, the commonality requirement is satisfied. 3. Typicality 5 Defendants argue that the claims of the Proposed Class are not common for the additional reason that "many" inside loan officers earned over $100,000 so that they would be exempt under the FLSA from overtime payments to the extent they “customarily and regularly" performed the duties of an administrative employee. (Defs.' Opp. at 14 n. 8.) The Court concludes that commonality (and predominance) is not defeated even if there are "many" such inside loan officers. Ultimately, whether or not these inside loan officers qualify for this exemption will depend on whether or not they performed administrative duties as defined under the FLSA. That is at the crux of the administrative [*15] exemption. Common issues predominate for the same reasons discussed infra in Section II.A.5.i with respect to the administrative exemption © Plaintiff conceded that inside loan officers employed by defendants after J une 2010 should not be part of the Proposed Class. (Pl.'s Reply at 1.) Defendants argue that the class period should end in April 2010, because they started paying hourly rates to their inside loan officers in May 2010. (Defs.' Opp. at 2, 4-5, 13.) The Court concludes that the cut-off for class membership should be in J une 2010. Although defendants state that they [*17] changed their compensation scheme in May and began paying inside loan officers an hourly rate including overtime, it is unclear when in May that change took effect. Previously, inside loan officers were paid on a bi-weekly basis and it is unclear whether some inside loan officers received pay on a draw against commission basis into the month of J une. Therefore, in an abundance of caution, the Court limits the time period to J une 2010. 7 Plaintiff suggests, in the alternative, that even if inside loan officers were not paid on a draw against commission basis prior to July 2007, they should still be part of the Proposed Class. (PI.'s Reply at 2.) As indicated supra, there is no evidence that inside loan officers working for defendants prior to J uly 2007 were paid under a scheme other than draw against commission. To the extent plaintiff wants to include any such individuals in the Proposed Class, the Court denies the request. Inside loan officers paid under a scheme other than a draw against commission are not similarly situated to plaintiff and other Proposed Class members.(FILED: NEW YORK COUNTY CLERK 01/05/2023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2011 U.S. Dist. LEXIS 103453, *17 Plaintiff's claims must be typical of the class. Fed. R. Civ. P. 23(a)(3). This requirement is satisfied if the plaintiff shows that "the representative plaintiff's claims are based on the same legal theory and arise from the same practice or course of conduct as the other class members." In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 241. "[W ]here a putative class representative is subject to unique defenses which threaten to become the focus of the litigation," certification for the class is improper because he or she can no longer act in the best interest of the class. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000). A primary underlying [*19] concern is the "danger that absent class members will suffer if their representative is preoccupied with defenses unique to it." Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 180 (2d Cir. 1990). In short, the question for the Court, at this stage, is whether "the named plaintiff's claim and the class claims are so inter-related that the interest of the class members will be fairly and adequately protected in their absence." Caridad, 191 F.3d at 291 (noting that commonality and typicality "tend to merge"). Based on the allegations in the amended complaint, the claims of the proposed class representative Han are inter-related, and common issues of law and fact exist between the proposed class representative and the rest of the Proposed Class. See In re Playmobil Antitrust Litig., 35 F. Supp. 2d at 241. Defendants argue that the representative plaintiffs claims are factually distinguishable from the rest of the Proposed Class. In particular, defendants contend that Han was paid under a different scheme from inside loan officers after May 2010 and prior to J uly 2007. 8 For the reasons discussed supra, the Proposed Class should be limited to inside loan officers employed from [*20] December 22, 2003 until J une 2010 who were paid on a draw against commission basis. See supra II.A.2, note 6-7. Han's claims are typical of Proposed Class members during that time period because Han was paid on a draw against commission basis, as were inside loan officers employed by defendants between July 2007 and June 2010. Id. As previously noted, there is sufficient evidence to demonstrate that inside loan officers working prior to J uly 2007 were also paid on this basis. Id. Accordingly, the Court concludes that the class representative's claims are typical of the Proposed Class and this requirement is met. See DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) ("The burden of demonstrating typicality is fairly easily met so long as other class members have claims similar to the named plaintiff."); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993); In re Oxford Health Plans, Inc., Sec. Litig., 191 F.R.D. 369, 375 (S.D.N.Y. 2000). 4. [*21] Adequacy of Representation "The final prerequisite for class certification under Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the class." Harris v. Initial Sec., Inc., No. 05 Civ. 3873 (GBD), 2007 U.S. Dist. LEXIS 18397, at *19 (S.D.N.Y. Mar. 7, 2007) (quotation marks omitted). "This requires that the proposed class representative . . . have an interest in vigorously pursuing the claims of the class, and .. . have no interests antagonistic to the interests of other class members." Id. (quotation marks omitted) (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)). "A class representative is a fiduciary to the class and bears a responsibility to comply with discovery requests, to possess a basic knowledge of the facts, and to participate to some minimal degree in the lawsuit 'to ensure that the party is not simply lending his name to a suit controlled entirely by the class attorney." In re Gaming Lottery Sec. Litig., 58 F. Supp. 2d 62, 76 (S.D.N.Y. 1999) (citations omitted). In determining whether plaintiff can adequately represent the interests of the class, courts are free to consider the honesty and trustworthiness [*22] of the class representative. See Savino v. Computer Credit Inc., 173 F.R.D. 346, 353 (E.D.N.Y. 1997). Where the court finds the class representative is not credible, adequacy of representation is absent. Compare Kline v. Wolf, 702 F.2d 400, 403 (2d Cir. 1983) (upholding decision to deny role as class representatives when "testimony on an issue critical to one of their two causes of action was subject to sharp 8To the extent defendants also argue that Han's claims as an inside loan officer are not typical of those by team leaders and outside loan officers, it is clear that plaintiff conceded the Proposed Class should just be limited to inside loan officers. See supra note 2.(FILED: NEW YORK COUNTY CLERK 0170572023 07:00 PM INDEX NO. 656614/2022 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/05/2023 2011 U.S. Dist. LEXIS 103453, *22 attack"); with Cromer Fin. Ltd. v. Berger, 205 F.R.D. 113, 125 (S.D.N.Y. 2001) (refusing to bar class representatives on grounds of credibility where it was not clear that plaintiffs lied or fabricated testimony). Finally, the Court must also inquire as to whether plaintiffs' counsel is "qualified, experienced and generally able to conduct the litigation." Trautz v. Weisman, 846 F. Supp. 1160, 1167 (S.D.N.Y. 1994). Defendants do not dispute counsel for plaintiff's ability to conduct the litigation and the Court concludes that counsel is qualified, experienced and able to conduct the litigation. (See Lee Decl. (Docket 48).) Defendants do, however, object to the proposed class representative. Defendants contend that Han cannot adequately represent the class because: (1) he has failed [*23] to cooperate during discovery; and (2) he waived trial by jury in the Compensation Agreement. (Defs.' Opp. at 16-18.) As set forth below, although defendants challenge whether Han is an adequate class representative, the Court does not find any of the arguments to be persuasive. Defendants argue that plaintiff refused to appear for a deposition and that plaintiff's discovery responses were grossly deficient. (Defs.' Opp. at 17; Mellk Affirm. Ex. 12 (outlining the deficiencies in the discovery responses).) However, the problems with discovery asserted by defendants in the instant case do not rise to the level of "glaring violations of the discovery rules," as required for Han to be considered an inadequate class representative. In re AM Int'l, Inc. Sec. Litig., 108 F.R.D. 190, 197 (S.D.N.Y. 1985). It is apparent that Han's deposition was scheduled at least at one point, but plaintiff Chang was deposed on the date originally reserved for Han's deposition because defendants canceled Chang's earlier deposition date. (Pl.'s Reply at 4-5, Ex. A-1 & A-2.) Thus, some attempt to schedule Han's deposition was made. Furthermore, it appears that the failure to re-schedule a deposition of Han was [*24]a result of a disagreement over the reproduction of discovery materials by defendants to plaintiffs in a more accessible format and defendants' unwillingness to schedule the depositions of their witnesses. (PI.'s Reply at 4.) With respect to allegations of deficient discovery responses, the defendants identified the deficiencies in a letter sent to plaintiffs dated September 23, 2010. (Mellk Affirm. Ex. 12.) However, the parties agreed to suspend discovery at the end of November to pursue settlement discussions (PI.'s Reply Ex. A-5), which did not lead to the resolution of the case. Discovery resumed in mid-February 2011 (Docket 52), but was once again stayed on March 10, 2011, pending the resolution of the parties' cross-motions for summary judgment. (Docket 59.) Given this time- table and the fact that an attempt to schedule Han's deposition was made, the Court concludes that plaintiff's failure to correct the various alleged deficiencies identified by defendants in their September 23 letter and motion to compel (which has yet to be resolved (Docket 58)), do not rise to the level of "glaring violations" of the discovery process. As a result, the Court