Motion-Secondary: Fridane Adolphe, Individually And On Behalf Of All Other Persons Similarly Situated Who Were Employed By Harbor Care, Llc, Along With Other Entities Affiliated Or Controlled By Harbor Care, Llc v. Harbor Care, Llc, And/Or Any Other Related Entities

On February 06, 2018 a Motion-Secondary was filed involving a dispute between Fridane Adolphe, Individually And On Behalf Of All Other Persons Similarly Situated Who Were Employed By Harbor Care, Llc, Along With Other Entities Affiliated Or Controlled By Harbor Care, Llc, and And Or Any Other Related Entities, Harbor Care, Llc, for Other Matters - Contract - Other in the District Court of Kings County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
FRIDANE ADOLPHE, individually and on behalf of all
other persons similarly situated who were employed by Index No.: 506822/2018
HARBOR CARE, LLC, along with other entities affiliated
or controlled by HARBOR CARE, LLC,

Plaintiffs,
v.
HARBOR CARE, LLC and/or any other related entities,

Defendant.

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO RENEW OR
REARGUE ITS MOTION VACATE

VIRGINIA & AMBINDER, LLP
LaDonna M. Lusher, Esq.
Michele A. Moreno, Esq.
Joel Goldenberg, Esq.
40 Broad Street, 7th Floor
New York, New York 10004

NAYDENSKIY LAW FIRM LLC
Gennadiy Naydenskiy
45 Heron Drive
Marlboro, New Jersey, 07746

Counsel for Named Plaintiff and the Putative Class

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TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................1

DEFENDANT’S HISTORY OF WILLFUL NONCOMPLIANCE ...............................................1

ARGUMENT ...................................................................................................................................8

I. DEFENDANT’S REQUEST TO VACATE THE AUGUST 2020 ORDER IN ITS
ENTIRETY SHOULD BE DENIED ..................................................................................8

II. DEFENDANT’S MOTION TO REARGUE MUST BE DENIED ..................................12

A. The Court Did Not Overlook the Interest of Justice Standard ...............................13

CONCLUSION ..............................................................................................................................14

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TABLE OF AUTHORITIES
CASES PAGE

Andryeyeva v. New York Health Care, Inc.,
153 A.D.2d 1216 (2d Dept. 2017) ..................................................................................................2

Arkin v 141-05 Pershing Realty Corp.,
138 A.D.3d 1044 (2d Dept. 2016) ................................................................................................12

Bank of N.Y. Mellon v Garrett,
144 A.D.3d 621 (2d Dept. 2016) ..................................................................................................12

Cellino & Barnes, P.C. v Martin, Lister & Alvarez, PLC,
191 A.D.3d 1459 (4th Dept. 2021) ...............................................................................................13

Field v. Bao,
140 A.D.3d 921 (2d Dept. 2016) ..................................................................................................11

IndyMac Bank, FSB v. Izzo,
166 A.D.3d 866 (2d Dept. 2018) ..................................................................................................13

Jia Wang v. Zhao,
151 A.D.3d 538 (1st Dept. 2017) ..................................................................................................12

Kihl v. Pfeffer,
94 N.Y.2d 118 (1999) ...................................................................................................................10

Kodirov v. Community Home Care Referral Serv., Inc.,
2012 N.Y. Misc. LEXIS 2126 (Sup. Ct. Kings Cnty., May 8, 2012) .............................................9

Laviano v. Bonafede,
2017 N.Y. Misc. LEXIS 4402, 2017 NY Slip Op 32396(U) (N.Y. Sup. Ct. Nassau Cty., Sept. 22,
2017) .............................................................................................................................................11

Lucas v. Stam,
147 A.D.3d 921, N.Y.S.3d 150 (2d Dept. 2017) ..........................................................................11

Mears v. Long,
149 A.D.3d 823 (2d Dept. 2017) ..................................................................................................11

Sinclair v. City of New York,
153 A.D.3d 876 (2d Dept. 2017) ..................................................................................................11

Schilling v. Quiros,
23 A.D.3d 243 (1st Dept. 2005) ....................................................................................................11

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Schneider v Solowey,
141 AD2d 813 (2d Dept. 1988) ....................................................................................................12

William P. Pahl Equip. Corp. v. Kassis,
182 A.D.2d 22 (1st Dept. 1992) ....................................................................................................12

STATUTES

CPLR § 901......................................................................................................................................9

CPLR § 2221..............................................................................................................................8, 12

CPLR § 3126..................................................................................................................................11

New York Labor Law § 661 ............................................................................................................9

N.Y. Comp. Codes R. & Regs, tit. 12 § 142-2.6(a)(4) ...................................................................9

iii

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PRELIMINARY STATEMENT

Named Plaintiff Fridane Adolphe and the putative class members (collectively “Plaintiffs”)

submit this memorandum of law in opposition to Defendant Harbor Care, LLC’s (“Harbor Care”

or “Defendant”) motion to renew and reargue its motion to vacate this Court’s August 2020

Decision and Order.

Defendant dragged its feet for nearly four years, refusing to produce discovery at every

step of this action in violation of multiple discovery orders, until this Court finally struck

Defendant’s Answer and precluded Defendant from testifying at trial or submitting an affidavit in

any dispositive motion. [Affirmation of Michele A. Moreno in Opposition “Moreno Aff.,” Ex. A,

August 14, 2020 Order (“August 2020 Order”).] Defendant’s request that the Court vacate the

August 2020 Order has already been denied, with this Court finding that Defendant did not

establish a basis for vacating. [Def. Ex. A, June 2021 Order.] Defendant now seeks to renew or

reargue that application. As set forth below, Defendant’s motion should be denied, as Defendant’s

behavior should not be condoned. Moreover, Defendant’s application seeks relief that is above

and beyond what this Court contemplated when it gave Defendant permission to reargue. [Id.]

DEFENDANT’S HISTORY OF WILLFUL NONCOMPLIANCE

Although the Court is undoubtedly aware of Defendant’s long history of willful

noncompliance in this action, it bears repeating given the relief Defendant now seeks.

On May 9, 2018, the parties entered into a Preliminary Conference Order stating that the

parties would serve their discovery demands by June 8, 2018. [Moreno Aff. Ex. B, Preliminary

Conference Order.] Pursuant to the Preliminary Conference Order, all pre-class certification

discovery would be complete by April 5, 2019. [Id.] On June 8, 2018, the day that the parties were

set to exchange discovery demands, Defendant moved to stay the case pending the Court of

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Appeals’ determination in another matter, Andryeyeva v. New York Health Care, Inc., 153 A.D.2d

1216 (2d Dept. 2017). [See NYSCEF Doc. Nos. 13-24]. Defendant’s motion to stay was denied

on December 7, 2018. [See NYSCEF Doc. No. 44].

On January 24, 2019, Plaintiffs served Plaintiffs’ Discovery Demands on Defendants.

[Moreno Aff., Ex. C.] On February 4, 2019, the parties entered into a Compliance Conference

Order that discovery responses would be served by March 15, 2019. [Moreno Aff. Ex. D,

Compliance Conference Order.] On March 15, 2019, Defendant produced its objections and

responses to Plaintiffs’ discovery demands, along with a 72-page production limited to paystubs,

calendars, and visit reports for only the Named Plaintiff. [Moreno Aff. Ex. E, Defendant’s

responses.] Defendant ignored Plaintiff’s pre-class certification discovery requests.

On March 27, 2019, the parties entered into a Final Pre-Note Order stating that the parties

would meet and confer to discuss a pre-class certification discovery sampling procedure for the

remainder of Defendant’s document production by April 5, 2019. [Moreno Aff. Ex. F, Final Pre-

Note Order.] The Final Pre-Note Order further stated that Defendant would produce its remaining

document production by May 31, 2019. [Id.] Accordingly, on April 4, 2019, Plaintiffs served

Defendant with a letter outlining a proposal for a representative sampling of pre-class certification

discovery for Defendant to produce. [Def. Ex. C, Sampling Letter.]

On May 7, 2019, Defendant’s counsel responded to the April 5, 2019 letter by stating that

it would provide a roster of putative class members that date back only from January 1, 2017 up

to the present, despite the statutory period going back to February 6, 2012. [Moreno Aff. Ex. G.]

Defendant also only agreed to produce a sampling of payroll and time records, employee

scheduling calendars, sign-in sheets, and employment policy manuals. [Id.] This fell far short of

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what Plaintiffs had requested for sampling and improperly limited the time period to when Named

Plaintiff worked for Defendant rather than the entire statutory period.

On May 10, 2019, the parties telephonically met and conferred regarding these issues.

[Moreno Aff., ¶ 9.] On May 20, 2019, Plaintiffs followed up with Defendant inquiring as to

whether Defendant would be producing the requested documents. [Moreno Aff. Ex. H.] The May

20, 2019 email contained relevant case law holding that pre-class certification discovery, as it

relates to wage and hour class actions, encompasses class members that worked beyond the time

period of the class representatives. [Id.] On May 31, 2019 and June 21, 2019, Plaintiffs sent follow-

up emails, but Defendant did not respond. [Id.] Accordingly, on July 10, 2019, Plaintiffs moved to

compel the outstanding discovery. [See NYSCEF Doc. Nos. 48-62.]

On August 7, 2019, the Court issued an order granting Plaintiffs’ motion to compel

discovery and requiring Defendant to “produce documents and information requested in Plaintiffs’

April 4, 2019 letter by 8/29/19, or otherwise affirmatively state in writing that they are not in

possession of the requested items.” [Moreno Aff. Ex. I, August 7, 2019 Order.] Defendant did not

produce the outstanding discovery as ordered by the August 29, 2019 deadline. [Moreno Aff., ¶

11.] Several months later, on November 19, 2019, Defendant’s counsel moved to withdraw.

[NYSCEF Doc. Nos. 66-69.]

On January 21, 2020 Plaintiffs moved to strike Defendant’s answer, or in the alternative,

preclude Defendant from offering evidence to oppose Plaintiffs’ claims or in support of their

affirmative defenses at subsequent stages of this action. [NYSCEF Doc. Nos. 70-81.] Defendant

was still represented by its counsel at this time. [Moreno Aff., ¶ 12.] Accordingly, Plaintiffs

properly served the motion by electronic filing. [NYSCEF Doc. Nos. 70-81.]

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On February 5, 2020, this court granted Hodgson Russ LLP’s motion to withdraw as

Defendant’s counsel. [Moreno Aff. Ex. J, February 5, 2020 Order.] Defendant’s principal, Jerome

Kahan, appeared at the courthouse on February 5, 2020, alongside attorney Matthew K. Parker of

Hodgson Russ and counsel for Plaintiff. [Moreno Aff., ¶ 14.] The parties appeared before the

Honorable Kathy. J. King, J.S.C on Hodgson Russ LLP’s motion to withdraw as Defendant’s

counsel. [Id.] At that time, Mr. Kahan was informed by the Court that Defendant would have 60

days to obtain new counsel, and that the action, including the motion to strike the answer or

preclude, would be stayed as well. [Id. at ¶ 15.] Plaintiffs’ counsel personally spoke with Mr.

Kahan at the Kings County courthouse on February 5, 2020, and based on those discussions, affirm

that he was fully aware of the 60-day stay and pending motion. [Id. at ¶ 16.] At that time, Mr.

Kahan specifically informed Plaintiffs’ counsel that he would be seeking new counsel. [Id.]

Defendant was also mailed a copy of the February 5, 2020 Order. [Id. at ¶ 17.] Despite being fully

aware that it would have 60 days to obtain new counsel and oppose Plaintiffs’ motion to strike the

answer or preclude, Defendant failed to do either. [Id. at ¶ 18.]

Plaintiffs mailed Mr. Kahan a letter on August 4, 2020 advising that Defendant’s 60-day

stay had expired and that the parties were scheduled for a conference on August 12, 2020. [Moreno

Aff. Ex. K.] Defendant failed to contact the Court or Plaintiffs’ counsel regarding an extension of

the stay or the motion. [Moreno Aff., ¶ 20.]

On August 14, 2020, this Court granted Plaintiff’s motion to strike the answer or preclude.

[Moreno Aff. Ex. A.] Specifically, the August 2020 Order found that, “Defendant has failed to

respond to plaintiff’s demands regarding pre-class certification notwithstanding orders directing it

to do so, including compliance order of 2/4/19, FCP order of 3/27/19, motion to compel order of

8/7/19 and multiple good faith letters.” [Id.] The Court held that Defendant was “precluded from

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testifying at trial or submitting affidavit in any dispositive motion without necessity for further

motion by plaintiff.” [Id.] Plaintiffs served Defendant with a copy of the August 2020 Order on

August 24, 2020. [Moreno Aff. Ex. L, Affidavit of Service.] Defendant did not contact the Court

or Plaintiffs’ counsel regarding the August 2020 Order. [Moreno Aff., ¶ 22.]

On February 11, 2021, Plaintiffs moved for class certification, without the benefit of the

requested pre-class certification discovery from Defendant. [NYSCEF Doc. Nos. 89-110.]

Defendant was served with Plaintiffs’ motion for class certification by First Class Mail. [Moreno

Aff. Ex. M, Affidavit of Service.]

On April 7, 2021, Defendant moved to vacate the August 2020 Order, eight months after

it was decided, and two months after Plaintiffs had moved for class certification. [NYSCEF Doc.

Nos. 112-124.] At the time that Defendant moved, it had still not provided the outstanding

documents or information that it had been ordered to produce. [Moreno Aff., ¶ 24.] Nevertheless,

Defendant disingenuously argued that the August 2020 Order should be vacated because

Defendant, as a result of withdrawing counsel and the COVID-19 crisis, had no knowledge of

Plaintiffs’ January 2020 motion to strike and/or preclude. [NYSCEF Doc. No. 113, Defendant’s

Memorandum of Law in Support of Motion to Vacate, p. 1.] As the record shows, that motion was

made prior to the time that Defendant’s counsel was relieved, and Defendant was well aware of

the pending motion.

On June 2, 2021 this Court denied Defendant’s motion to vacate the August 2020 Order,

finding, inter alia, that “Defendant has not established a basis to vacate the order inasmuch as the

defendant’s failure to provide the discovery sought predated the Covid crisis and withdrawal of

counsel by a full year.” [Def. Ex. B.] This Court also granted Defendant leave to renew its motion

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to vacate only to the extent of moving to vacate the preclusion with respect to the issues as to which

discovery was timely provided.” [Id.]

Thereafter, on July 20, 2021, Defendant produced approximately 29,257 pages consisting

of payroll and time records for approximately 91 employees between the years of 2012 to 2019.

[Moreno Aff., ¶ 25.] This production, which Defendant purports satisfies its pre-class certification

discovery obligations, was not timely as it was produced two months after Plaintiffs’ motion for

class certification was already fully briefed and submitted to the Court. [See NYSCEF Doc Nos.

164-173, Reply to Motion for Class Certification filed on May 25, 2021.]

Defendant incorrectly represents to this Court that “[t]here are no other outstanding

discovery demands.” [Mehlman Aff. ¶ 5.] Plaintiffs’ pre-certification discovery demands and

Plaintiffs’ subsequent sampling request sought numerous other documents and information that

were never provided in this action. For example:

…

4) Records of benefits paid. This information may be found on a worker’s payroll
receipt and/or corporate payroll runs, and should include the employee identity, payroll
week, total regular hours worked, total OT hours worked, hourly wage rate, employer
paid benefit fund payments (such as contributions for pension, 401k, medical/dental
plan, health care plan, metro cards and etc.);

…

6) For employees performing live-in shifts – all records of sleeping facilities and
accommodations provided to the employee;

7) Employee personnel files;

…

9) All training manuals, handbooks and employment policies;

10) All orientation training records and policies;

11) All in-service training records and policies;

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12) All training videos, audio recordings, power points and/or other visual or electronic
presentations and any other related documents or handouts used by Defendant during
orientation and in-service training sessions;

13) All methods used by Defendant to record, document or otherwise memorialize time
worked by putative class members (e.g., time clocks, timesheets, sign-in/sign-out logs,
call-in/call-out logs, or GPS records). Please include any explanations or keys for
coding systems utilized to record time worked by putative class members.

14) All payroll policies used to pay putative class members, including but not limited
to: a. Defendant’s compensation, overtime and spread of hours pay policies and/or
treatment of putative class members as exempt from receiving minimum wages for all
hours worked and overtime pay.

b. the statement of rounding rules, summaries, instructions,
interpretations, blank forms, paychecks, pay stubs, time slips, sign-in
sheets, transportation sheets, adjustment sheets, worksheets, and
ledgers.

15) The identity of the employee(s), agent(s) or other representative(s) of the Defendant
who was responsible for preparing and/or maintaining payroll records. Please include
their job title, and whether they are currently employed by Defendant.

16) All policies and practices regarding to uniform requirements;

17) All contracts and/or subcontracts and/or agreements that Defendants entered into
with HRA and/or with any government agencies that cover work performed by putative
class members;

18) All contracts and/or subcontracts and/or agreements that Defendants entered into
with managed care organizations, long term home health care programs and/or certified
home health agencies that cover work performed by putative class members;

19) Wage Parity Act compliance certificates for all years during the Relevant Period;

20) All CBAs and/or MOAs in effect during the Relevant Period, if any;

21) Any audits, investigations, and/or inquiries by any Regulatory Authority or
government agency;

22) All documents relating to any complaints or grievances (whether formal or
informal, oral or written) made by putative class members regarding compensation,
hours of work, or job duties, and all documents relating to any investigations conducted
by Defendant of such complaints; and

23) All documents that refer or relate to Defendants’ document retention policies,
record-keeping policies, and/or any deviations from such policies.

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[Def. Ex. C.] These items have never been produced, to date. [Moreno Aff., ¶ 26.] Accordingly,

the only discovery that was arguably timely produced was Defendant’s March 15, 2019 production

of 72-pages of paystubs, calendars, and visit reports for the Named Plaintiff.

Defendant now moves to renew or reargue its motion to vacate the August 2020 Order that

precluded Defendant from testifying at trial or submitting an affidavit in any dispositive motion

and struck its Answer, on the grounds that it has satisfied its pre-class certification discovery

obligations. Defendant makes this application over three years after Plaintiffs’ requests were

originally made and over one year after Plaintiffs were forced to move for class certification

without the benefit of these documents. Defendant’s request for relief goes well beyond what the

Court contemplated in its June 2021 Order when it granted Defendant leave to renew, and

Defendant’s motion should be denied.

ARGUMENT

I. DEFENDANT’S REQUEST TO VACATE THE AUGUST 2020 ORDER IN ITS
ENTIRETY SHOULD BE DENIED
On a motion for leave to renew, there are three criteria which must be met: 1) the motion

shall be identified as such; 2) the motion shall be based upon new facts not offered on the prior

motion that would change the prior determination or shall demonstrate that there has been a change

in the law that would change the prior determination; and 3) the motion shall contain reasonable

justification for the failure to present such facts on the prior motion. CPLR § 2221(e). Defendant

fails to meet these requirements.

Defendant contends that because it has now produced “extensive” discovery responsive to

Plaintiffs’ outstanding demands, it has demonstrated it is “ready, willing, and able to comply with

future discovery demands,” and so the preclusion should be vacated in its entirety and Defendant

should not be precluded from contesting class certification. [Def. Memo pp. 7-8.] Specifically,

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Defendant argues that “class certification has not yet been granted and therefore, while the

discovery was produced late, the delay has not prejudiced Plaintiff.” [Def. Memo pp. 7-8.]

The suggestion that Plaintiffs were not prejudiced by Defendant’s failure to produce pre-

class certification discovery before Plaintiffs moved for class certification is preposterous. As this

Court is aware, the typical process in a putative class action is for the parties to engage in pre-class

certification discovery, wherein defendant produces requested records and information for the

putative class so that plaintiffs may utilize it in support of their motion for class certification.

Indeed, New York courts have compelled such discovery. Kodirov v. Community Home Care

Referral Serv., Inc., 2012 N.Y. Misc. LEXIS 2126 (Sup. Ct. Kings Cnty., May 8, 2012) (“In order

to determine if the requirements set forth in CPLR 901 are met, and to assess the considerations

listed in CPLR 902, limited discovery must be conducted. Plaintiffs must be allowed to assemble

evidence to meet their burden of showing that the statutory prerequisites to certification of a class

are met.”) (citations omitted). This is because as employees, Plaintiffs do not have access to the

payroll, time records, and other related employment documents that Defendant was legally

required to maintain under New York Labor Law § 661 and N.Y. Comp. Codes R. & Regs, tit. 12

§ 142-2.6(a)(4). These documents are utilized in establishing the pre-requisites for class

certification (i.e., numerosity, commonality, typicality, adequacy, and predominance).

It was highly prejudicial for Plaintiffs to have to make their motion for class certification

without the benefit of such discovery. Rather than producing the documents at the time that

Plaintiffs moved for class certification, Defendants chose to hire new attorneys to oppose the

motion for class certification on the grounds that Plaintiffs failed to meet their burden of

establishing the elements of CPLR 901 – a wholly unreasonable argument considering Defendant’s

failure to produce the evidence that Plaintiffs requested. [NYSCEF Doc. No. 125, Section B.]

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Defendant also used several documents in opposition to Plaintiffs’ motion for class certification

that had never been produced in discovery. [See e.g., NYSCEF Doc. No. 130.] To state that

Plaintiffs were not prejudiced by Defendant’s years of willful noncompliance with pre-class

certification discovery is belied by the record.1

Accordingly, Defendant’s July 2021 production should not change the Court’s prior

determination. This Court granted Defendant leave to renew only to the extent of moving to vacate

the preclusion with respect to the issues as to which discovery was timely provided.” [Def. Ex. B.]

The July 2021 production, which Defendant contends is responsive to Plaintiffs’ pre-certification

discovery demands, was not timely provided nor is it even a complete production. [Moreno Aff.,

¶ 26.]

Defendant has also failed to articulate any reason why its Answer should not be struck. In

precluding Defendant and striking its Answer, this Court considered Defendant’s failure to comply

with several Court orders, and its failure to respond to Plaintiffs’ good faith attempts to obtain the

discovery. [Moreno Aff. Ex. A.] Defendant’s late and incomplete production should not change

this Court’s determination, which was rendered as a sanction for Defendant’s pattern of willful

noncompliance over the course of several years for which Defendant provided no justifiable basis.

Indeed, as this Court previously noted, “Defendant has not established a basis to vacate the order

inasmuch as the defendant’s failure to provide the discovery sought predated the Covid crisis and

withdrawal of counsel by a full year. No explanation for the failure to have complied with the

earlier court orders was tendered.” [Id.]

In Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999) the Court of Appeals opined that:

If the credibility of court orders and the integrity of our judicial
system are to be maintained, a litigant cannot ignore court orders
with impunity. Indeed, the Legislature, recognizing the need for
1
Plaintiffs’ class certification motion is fully-briefed and awaiting decision by this Court. [Motion Seq. #005.]

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courts to be able to command compliance with their disclosure
directives, has specifically provided that a 'court may make such
orders... as are just,' including dismissal of an action (CPLR 3126).
Finally, we underscore that compliance with a disclosure order
requires both a timely response and one that evinces a good-faith
effort to address the requests meaningfully.

See also Laviano v. Bonafede, 2017 N.Y. Misc. LEXIS 4402, *2-5, 2017 NY Slip Op 32396(U),

2-5 (N.Y. Sup. Ct. Nassau Cty., Sept. 22, 2017) (“the willful and contumacious character of the

conduct of the plaintiffs may be inferred from the repeated failures over an extended period of

time, without adequate excuses, to comply with discovery demands and the Court’s discovery

orders. Any remedy other than dismissal of this action falls short of granting adequate justice to

the defendants.”) (citing Mears v. Long, 149 A.D.3d 823 (2d Dept. 2017) (affirming trial court

order granting plaintiffs’ motion to strike the defendants' answer and for leave to enter a default

judgment against the defendants where defendants' willful and contumacious conduct could be

inferred from their repeated failures, without an adequate excuse, to comply with discovery

demands and the Supreme Court's discovery orders); Lucas v. Stam, 147 A.D.3d 921, 48 N.Y.S.3d

150 (2d Dept. 2017) (based on defendants’ “repeated failures over an extended period of time” the

“imposition of monetary sanctions was insufficient to punish the defendants and their counsel for

their willful and contumacious conduct in failing to timely and fully respond to discovery demands

and court orders.” Instead, “the court should have granted that branch of the plaintiff’s motion

which was to strike the defendants’ answers.”); Field v. Bao, 140 A.D.3d 921 (2d Dept. 2016) cf

Sinclair v. City of New York, 153 A.D.3d 876 (2d Dept. 2017)); see also Rodriguez v. Nevei Bais,

Inc., 158 A.D.3d 597 (1st Dept 2018) (unanimously affirming lower court’s order granting

plaintiff’s motion to strike defendant’s answer where defendant failed to meet multiple court-

ordered discovery deadlines); Schilling v. Quiros, 23 A.D.3d 243, 244 (1st Dept. 2005)

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(“Defendants' willful failure to comply with the directed discovery … warranted an adverse

inference.”).

Defendant has not presented any new facts not offered on the prior motion that would

change this Court’s prior determination, thus, Defendant’s motion to renew its motion to vacate

the August 2020 Order in its entirety should be denied. Jia Wang v. Zhao, 151 A.D.3d 538 (1st

Dept. 2017) (affirming denial of a motion to renew because the new facts or law must be ones that

“would change the prior determination.”); see also Bank of N.Y. Mellon v Garrett, 144 A.D.3d

621, 621 (2d Dept. 2016)(finding that Supreme Court properly denied defendant’s motion for leave

to renew, since the newly submitted evidence would not have changed the prior

determination); See also Arkin v 141-05 Pershing Realty Corp., 138 A.D.3d 1044, 1045 (2d Dept.

2016)(holding that Supreme Court providently exercised its discretion in denying the branch of

plaintiff’s motion seeking to renew, as it did not establish new facts that would change the prior

determination).

II. DEFENDANT’S MOTION TO REARGUE MUST BE DENIED2
“A motion for leave to reargue pursuant to CPLR 2221…may be granted only upon a

showing ‘that the court overlooked or misapprehended the facts or the law or for some reason

mistakenly arrived at its earlier decision.’” William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d

22, 27 (1st Dept. 1992) (quoting Schneider v Solowey, 141 AD2d 813 (2d Dept. 1988)).

Defendant alleges that the Court overlooked that, “until August 2019, the parties were

engaged in discourse regarding the scope of discovery” and Defendant was therefore not

“delinquent in its discovery obligations for over a year before the withdrawal of counsel and the

COVID-19 crisis,” as found by the Court. [Def. Memo p. 9.] However, the record demonstrates

2
The Court’s June 7, 2021 Order only gave Defendant permission to renew, not reargue, thus Defendant’s
application to reargue should be dismissed at the outsset.

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that the only “discourse regarding discovery” were several attempts by Plaintiffs to obtain

sampling documents – including emails on May 20, 2019, May 31, 2019, and June 21, 2019 that

all went ignored (Moreno Aff. Ex. H) and a motion to compel that went unopposed. This was

despite the fact that Defendant was still represented by Counsel who appeared at a conference to

resolve the same motion. [Moreno Aff. Ex. I.] At that same conference, on August 7, 2019,

Defendant was ordered to produce documents and information requested in Plaintiffs’ April 4,

2019 letter and still failed to produce the requested discovery. [Moreno Aff. Ex. I.] Accordingly,

this Court did not overlook any facts in denying Defendant’s motion to vacate. Moreover,

Defendant has not shown any reasonable excuse for its delay in producing documents.

A. The Court Did Not Overlook the Interests of Justice Standard

Defendant also argues that reargument is warranted because the Court overlooked the

“interests of justice standard.” [Def. Memo pp. 9-10.] As already set forth in Plaintiffs’ opposition

to Defendant’s motion to vacate, Defendant never articulated any reason why this Court should

vacate its August 2020 Order in the interests of justice. “While courts have discretionary power to

relieve a party from a judgment or order for sufficient reason and in the interest of substantial

justice . . . ‘[a] court's inherent power to exercise control over its judgments is not plenary, and

should be resorted to only to relieve a party from judgments taken through [fraud,] mistake,

inadvertence, surprise or excusable neglect[.]" IndyMac Bank, FSB v. Izzo, 166 A.D.3d 866 (2d

Dept. 2018) (internal citations omitted). “[C]onclusory and unsubstantiated claims of law office

failure,” like those put forth by Defendant here, “are insufficient to establish a reasonable basis to

vacate a judgment in the interests of substantial justice.” Cellino & Barnes, P.C. v Martin, Lister

& Alvarez, PLC, 191 A.D.3d 1459 (4th Dept. 2021).

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Here too, beyond reciting the standard, Defendant provides no basis for why the Court

should consider the “interests of justice.” Defendant vaguely references “the unusual

circumstances presented by the COVID-19 pandemic, in combination with the timing of the

Motion to Preclude and prior counsel’s withdrawal…” (Def. Memo p. 10), but as this Court has

already noted, Defendant’s delinquent conduct predates these events. Thus, Defendant cannot rely

on the “interests of justice” to excuse its dilatory behavior. Accordingly, Defendant’s motion to

reargue should be denied in its entirety.

CONCLUSION

Plaintiffs respectfully request that this Court deny, Defendant’s motion to renew or reargue

its motion to vacate this Court's August 2020 Order, together with such other and further relief as

the Court deems just and proper.

Dated: November 29, 2022
New York, New York
VIRGINIA & AMBINDER, LLP
/s/ LaDonna M. Lusher .
LaDonna Lusher, Esq.
Michele A. Moreno, Esq.
Joel Goldenberg, Esq.
40 Broad Street, 7th Floor
New York, New York 10004
Tel: (212) 943-9080
Fax: (212) 943-9082
llusher@vandallp.com

NAYDENSKIY LAW FIRM LLC
Gennadiy Naydenskiy
45 Heron Drive
Marlboro, New Jersey, 07746
Tel: (71) 808-2224
Fax: (866) 261-5478
naydenskiylaw@gmail.com

Counsel for Named Plaintiff and the
Putative Class

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CERTIFICATION OF WORD LIMIT

I hereby certify that the foregoing memorandum of law contains 4,209 words, excluding

the caption, table of contents and table of authorities, and signature block, and complies with the

word count limit set forth in 22 NYCRR 202.8-b.

Dated: New York, New York
November 29, 2022
VIRGINIA & AMBINDER, LLP

/s/ Michele A. Moreno .
Michele A. Moreno Esq.
40 Broad Street, 7th Floor
New York, New York 10004
Tel: (212) 943-9080
Fax: (212) 943-9082
Email: mmoreno@vandallp.com

Counsel for Named Plaintiff and the Putative Class

19 of 19

Case Info

Judge

Delores Thomas Track Judge’s New Case

Case No.

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Document Filed Date

November 29, 2022

Case Filing Date

February 06, 2018

County

Parties

AMBINDER, LLOYD R Attorney for the Plaintiff
and/or any other related entities Defendant
Fridane Adolphe Plaintiff
GOLDENBERG, JOEL LEVI Attorney for the Plaintiff
HARBOR CARE, LLC Defendant
individually and on behalf of all other persons similarly situated who were employed by HARBOR CARE, LLC, along with other entities affiliated or controlled by HARBOR CARE, LLC Plaintiff
Lusher, LaDonna Attorney for the Plaintiff
MCDERMOTT, ELENA THERESE Attorney for the Defendant
MEHLMAN, AVERY S Attorney for the Defendant
MORENO, MICHELE A. Attorney for the Plaintiff
NAYDENSKIY, GENNADIY Attorney for the Plaintiff
PORICANIN, EMINA Attorney for the Defendant
ROBINSON, KATHLEEN HEATHER Attorney for the Defendant
SEKOWSKI, MICHELLE MARIE Attorney for the Defendant
MILANA DOSTANITCH Attorney
KENNETH PARKER Attorney
KELECHI ACHOLONU Attorney
JAN GOLDENBERG Attorneys for Plaintiffs
RYAN CUMMINGS Attorney
MATTHEW PARKER Attorneys for Defendants
CAROL TURNER Attorneys for Plaintiffs
KARA MILLER Attorneys for Plaintiffs

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Motion-Secondary: Fridane Adolphe, Individually And On Behalf Of All Other Persons Similarly Situated Who Were Employed By Harbor Care, Llc, Along With Other Entities Affiliated Or Controlled By Harbor Care, Llc v. Harbor Care, Llc, And/Or Any Other Related Entities

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