Preview
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 07/06/2021
EXHIBIT I
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
vYSCEF
NYSCEF DOC.
DOC. NO.
NO. 109
23 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/23/202
07/06/2021 (
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ROBERT DAVID KALISH PART IAS MOTION 29EFM
Justice
X INDEX NO. 161194/201J___
IRINA ARNUTOVSKAYA, INDIVIDUALLY AND ON
MOTION DATE N/A
BEHALF OF ALL OTHER PERSONS SIMILARLY
SITUATED,
MOTION SEQ. NO. 004
Plaintiffs,
- V -
ALTERATION GROUP OF NY, LLC, AND RELATED OR
MOTION
AFFILIATED ENTITIES, JEREMY MILLER,
Defendants.
-------- -----------X
The füllavving e-filed documents, listed by NYSCEF document number (Motion 004) 87, 88, 89, 90, 91,
92, 93, 94, 95, 96, 99, 100
were read on this motion to/for MJSCELLANEOUS .
Motion by named plaintiff IRINA ARNUTOVSKAYA ("Named Plaintiff"), on behalf of herself
Members"
and the proposed class ("Class or "Plaintiffs") as defined in the Settlement Agreemeñt
("Settlement") (NYSCEF Doc No 74 [Settlement Agreement] at 2), for Final Approval of Class
Action Settlement-including the approval of settlement checks to qualified class members,
attorneys'
fees and costs, claims administration costs, and for a service award to Named
Plaintiff-is granted, without opposition.
JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION
SETTLEMENT
On Decealeer 19, 2017, Named Plaintiff filed a Class Action Complaint against
defendants ALTERATION GROUP OF NY, LLC d/b/a/ ALTERATION SPECIALISTS OF
NEW YORK ("ASNY"), and related or affiliated entities, and JEREMY MILLER (collectively
"Defendants") alleging that Defendants violated the New York Labor Law ("NYLL") Articles 6
and 19 and 12 New York Codes, Rules, and Regulations ("NYCEE") § 142 by not compensating
Plaintiffs for all the hours worked and by maintaining a policy and practice of paying itstailors
commissions at a rate lower than the rate promised and further by unlawfully deducting earned
Plaintiffs'
wages from last paychecks. (NYSCEF Doc No 1 [Class Action Complaint] ¶¶l-4.)
The Complaint alleges four causes of action: NYLL - minimum NYLL - overtime
(1) wage; (2)
NYCEE - unpaid breach of contract. (Id. In
compensation; (3) wages; and, (4) ¶¶ 50-87.)
addition to the class-wide claims, Named Plaintiff alleges the aforementioned individual claim
for breach of her employment contract. (Id.)
161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 1 of 12
Motion No. 004
- - -
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
9YSCEF
NYSCEF DOC.
DOC. NO.
NO. 109
23 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/23/202(
07/06/2021
On March 12, 2019, having heard oral argument, this Court issued an order certifying a
class consisting of tailors who worked for ASNY since December 19, 2011. (NYSCEF Doc No
55 [Order Granting Motion for Class Certification] ; see also NYSCEF Doc No 56 [Transcript of
Oral Argument on Class Certification] at 19:12-24:19.) The defined class does not include any
manager, corporate officer, director, clerical or office workers. (See NYSCEF Doc No 43
[Memorandum in Supp of Motion for Class Certification] at 1; see also Order Granting Motion
for Class Certification.)
On November 20, 2019, the parties presented to the Court a Proposed Settlement which
the Court preliminarily approved. Additionally, the Court also authorized publication of the
Notice of Class Action Settlement ("Notice"), Claim Form and Release ("Claim Form"), and the
Opt-Out Form (collectively referred to as the "Notice Packet"). (Ex A, NYSCEF Doc No 89
[Order Granting Preliminary Approval].)
According to the affidavit of Settlement Claims Administrator Tomasz Kulak ("Kulak")
of Martom Solutions LLC ("MSLLC"), on December 27, 2019, the Notice Packet was
distributed to the sixty-four (64) Class Members via First Class Mail. (NYSCEF Doc No 91
[Kulak Affj ¶¶ 4, 6.)1 According to Kulak's affidavit, of the sixty-four (64) Notice Packets
distributed by First Class Mail, three (3) were returned as undeliverable. (Id. ¶ 8.) MSLLC
performed a skip trace and found three (3) new addresses for these Class Members and the
Notice Packets were promptly re-mailed. (Id. ¶¶ 7, 8.) Of the three (3) re-mailed Notice Packets,
none were returned. (Id. ¶ 8.) Of the sixty-four (64) Class Members, fifteen (15) Class Members
responded. (Id. ¶ 9.) Of the fifteen (15) Class Members, fourteen (14) filed claims and are
authorized to receive a settlement check. (Id ¶¶ 9, 12.) Only one Class Member opted out of the
Settlement. (Id. ¶ 10.)No Class Members objected to the Settlement. (Id. ¶ 11; see also Ex B,
NYSCEF Doc No 90 [Notice] at 1 [Objection Deadline].)
The Fairness Hearing that was originally scheduled for March 25, 2020, was cancelled
due to the COVID-19 pandemic. As per the Notice Packet, all objections to the Settlement were
to be submitted by February 25, 2020. (Notice Packet at 1.) According to the moving papers, no
Plaintiffs'
objections were filed. Notwithstanding the prior notification, on May 6, 2020, firm
Virginia & Ambinder, LLP ("Class Counsel")2 mailed a Supplemental Notice to Class Members
informing them that the Court was going to evaluate the Settlement based on written submissions
and would schedule a Virtual Fairness Hearing for the Class Members ifso requested. (NYSCEF
Doc No 100 [Supplemental Notice] ; see also NYSCEF Doc No 99 [Newhouse Supp Aff] ¶ 3.)
None of the Supplemental Notices were returned as undeliverable. (NYSCEF Doc No 99
[Newhouse Supp Affj ¶ 4.) No Class Member again objected to the Settlement or requested to
appear at a potential Virtual Fairness Hearing. (NYSCEF Doc No 99 [Newhouse Supp Affj ¶
26.) Under the circumstances, the Court deems the right to appear and be heard at the Fairness
Hearing to be satisfied and waived.
1A similarnotice was posted on MSLLC's website, which presently seems not tobe accessible. (NYSCEF Doc No
91 [Kulak Affj ¶¶ 4,6.)
Counsel" Counsel"
"Flainiill's'
2 Section 1.7 ofthe Settlement Agreement statesthat "Class and shallmean Lloyd
Ambinder and Jack Newhõüse ["Newhouse"] of and including Virginia & Ambiñdêr LLP with an address of 40
10004."
Broad Street,702 Floor, New York, New York (NYSCEF Doc No 74 [Settlement Agreement].)
161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 2 of 12
Motion No. 004
- - --
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
YSCEF
NYSCEF DOC.
DOC. NO .
NO. 10
23 9 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/23 / 202(
07/06/2021
Having considered the Motion for Final Approval of Class Action Settlement and the
record in this matter, for the reasons set forth in the written submissions by the parties, and for
good cause shown,
Accordingly, it ishereby, ORDERED that
A. Certification of the Class
1. Pursuant to CPLR 901 and 902, the Court certifies, for settlement purposes, a Class
consisting of all individuals who are presently or were formerly employed as tailors by
ASNY from December 19, 2011, to the date of the preliminary approval order, which is
November 20, 2019. (NYSCEF Doc No 74 [Settlement Agreement] at 2.) The Class does
not include any manager, corporate officer, director, clerical or office workers. (See
NYSCEF Doc No 43 [Memorandum in Supp of Motion for Class Certification] at 1; see
also Order Granting Motion for Class Certification.)
B. Approval of the Settlement
2. The Court grants the Motion for Final Approval of Class Action Settlement,3 including:
a) $72,500 for an award of
attorneys'
fees, expenses, and costs - $38,032.36 of
which comes from the Gross Settlement Amount4 and $34,467.64 of which makes
up 33.33% or one third of the Gross Payment;5
b) $3,000 for the Service Award to Named Plaintiff from the Gross Settlement
Amount;
c) $2,000 for the settlement of Named Plaintiff's individual Breach of Contract
claim from the Gross Settlement Amount;
d) $29,526.42 for Settlement Checks from the Net Settlement Fund;6 and
e) $6,787.30 for Claims Administrator's costs from the Net Settlement Fund.7
3 Ina callwith the Court dated June 18, 2020, Plaintiff's
Counsel iñf0rmed the Court thatafter theopt-in deadline
passed, an additionalclass member sought to opt-in,and Defendants did not object.In lightof thisadditional
member opting-in,there may be a slightdiscrepancy in the numbers.
4 Gross Settlement Amount isdefined as themnism amount thatcan be paid by Deféñdãüts and includes all
Costs and Fees. Based on the Senlement and Plaintiff'sCounsel Newhouse's letter
dated June 18,2020, itis equal
to $146,435.29. (NYSCEF Doc No 74 [Senlement Agreement] 1.18 at3 ; seealso NYSCEF Doc No 103 [Newhcuse
Letter dated June 18, 2020].)
Payment"
5 Gross Payment ("Gross or "Individual Allocations to Class Members") is that
portion of the Gross
Settlement Amount from which Defendants have agreed topay Class Members. Itisa totalof $103,402.93.
(NYSCEF Doc No 90 [Notice];NYSCEF Doc No 103 [Newhouse Letter dated June 18, 2020].)
6 Net Settlement Fund isthat portionof theGross Settlement Amount thatconsists of thefollowing: Individual
Allocations to Class Members who have opted intothe Settlement ($29,526.42); Service Award ($3,000);
Attorneys'
Fees and Costs ($72,500); and Claims Adminhation Fees & Costs ($6,787.30). Itstotalamount equals
to $111,813.72. (NYSCEF Doc No 103 [Newhouse Letter dated June 18, 2020].)
7 The balance of theGross Se"lescñt Amount of $32,621.57 was availableto Class Members but was not claimed.
As such,this amount willtheoretically revertback to Defendants afterpayroll and any otherapplicable taxes are
deducted. Class Counsel statesthatthe payroll taxesare estimated to be about $3,300. (NYSCEF Doc No 103
[Newhouse Letterdated June 18, 2020].)
161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 3 of 12
Motion No. 004
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
YSCEF
NYSCEF DOC.
DOC. NO.
NO. 109
23 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/23/202(
07/06/2021
3. CPLR 908 requires judicial approval for any compromise of claims brought on a class
basis. In determining whether to approve a class action settlement, courts examine "the
fairness of the settlement, its adequacy, itsreasonableness, and the best interests of the
members."
class (Fiala v Metro. Life Ins. Co., Inc., 27 Misc 3d 599, 606 [Sup Ct 2010]
[internal citations omitted].) "Adequacy requires balancing the value of that settlement
against the present value of the anticipated recovery following a trial on the merits,
litigation."
discounted for the inherent risks of (Id. at 607 [internal citations and
quotations emined].) Relevant factors in determining whether a settlement is fair,
reasonable and adequate include: "the likelihood of success, the extent of support from
the parties, the judgment of counsel, the presence of bargaining in good faith, and the
fact."
nature of the issues of law and (In re Colt Indus. Shareholder Litig., 155 AD2d
154, 160 [1st Dept 1990], affd as mod sub nom. Matter of Colt Indus. Shareholder Litig.
v Colt Indus. Inc., 77 NY2d 185 [1991] [internal citations omitted].)
4. In the present case, the Court finds that the aforementioned factors overall weigh in favor
of approving the Settlement. Although the participation rate is approximately 23% (or
15/64), similar rates have been accepted by courts in New York. (See, e.g., Hernandez v
Immortal Rise, Inc., 306 FRD 91, 100 [EDNY 2015] [finding a 20% participation rate
reasonable, which is "well above average in class action settlements"); Lopez v The Dinex
Group, LLC, 2015 N.Y. Slip Op. 31866[U] [Sup Ct, 2015] [finding a participation rate of
32.8% reasonable].) "Claims-made settlements typically have a participation rate in the
range."
10-15 percent (Hernandez, 306 FRD at 100, citing 2 McLaughlin
on Class Actions § 6:24 [8th ed.].) The Court is aware that a possible explanation for this
rate-which has been referred to by other courts-is that the notice in the mail was
mail."
treated as "junk (Cf Andrew C. Brunsden, Hybrid Class Actions, Dual
Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J Emp &
Lab L 269, 292-94 [2008] [noting that opt-in rates in 2008 ranged between 2% and
89.5%, with a nationwide average of 15.71% due largely to the tendency to "do nothing
in response to class notices"]; Noah A. Finkel, State Wage-and-Hour Law Class Actions:
'FLSA'
The Real Wave of Litigation?, 7 Employee Rts & Emp Pol'y J 159, 161 [2003].)
In addition, there are other factors that might have affected the opt-in rate such as
immigration status, language, and educational barriers. (See, e.g., De La Cruz v. Gill
Corn Farms, Inc., 2005 U.S. Dist. LEXIS 44675, at *6-7 [NDNY Jan. 25, 2005].) Also, a
further factor for the Court's analysis, is only one Class Member has opted out of the
Settlement, and none have objected to it.(NYSCEF Doc No 91 [Kulak Aff] ¶¶ 10, 11;
see also v Del Global Techs. 186 F 2d 362- 63 [SDNY
Maley Corp., Supp 358, 2002].)
Further, in the instant case, the approximate 23% participation rate is outweighed by
other factors that are in favor of the settlement, such as the risks of litigation. For
example, in order to establish their claim, Plaintiffs would have to prove that: (1) they
were entitled to receive overtime compensation; and (2) they were not paid adequate
overtime compensation. (NYSCEF Doc No 102 [2d Supp Aff Newhouse] ¶ 5.) First,
Plaintiffs recognize, for settlement purposes, that regarding the issue of entitlement, the
law is unclear as to whether tailors who engaged in alterations may be exempt from
statutory overtime and state that no court has specifically ruled on this issue. (Id. ¶¶ 11,
14; see also 29 U.S.C. § 207[i].) Correspondingly, Defendants had argued in their
opposition to class certification that Plaintiffs are not entitled to overtime compensation
161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 4 of12
Motion No. 004
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
vY SCEF
NYSCEF DOC .
DOC. NO.
NO. 109
23 RECEIVED
RECEIVED NY SCEF:
NYSCEF: 06/23/202(
07/06/2021
under the law. Defendants argued that Class Members are exempt from traditional
overtime requirements under FSLA and NYLL and reserved their right to assert such
affirmative defenses as part of a forthcoming Motion for Summary Judgment. (Memo in
Opp [Seq 002], NYSCEF Doc No 45 [Memo in Opp to Motion for Class Certification] at
2, n. 1.) Secondly, assuming tailors were entitled to overtime, Plaintiffs would then
additionally have the burden of proving their damages for such unpaid overtime. In that
regard, Plaintiffs would be required to establish the number of hours worked in excess of
forty (40) hours in a week and that they were not paid at the proper overtime rate for
Plaintiffs'
those overtime hours. (Memo in Supp, NYSCEF Doc No 96 [Memo in Supp of
Motion for Final Approval of the Proposed Settlement] at 4.) In their opposition to the
class certification motion, Defendants denied that Plaintiffs worked more than forty (40)
hours in a week, and Defendants further argued that, if they did, they were paid the
proper wage. On that prior motion, Defendants had submitted affidavits from one
manager and ten tailors to show that Plaintiffs did not work many, if any, overtime hours.
(NYSCEF Doc No 46 [Affirm in Opp to Class Certification], Ex H [Dipchand Babooram
EBT] ¶ 8 [testifying that allthe tailors knew or know how to scan their time and so their
time sheets showing not much overtime work, if any, reflect their time accurately]; see
also Ex F [Doris Muscat EBT] ¶¶ 21-24; Ex G [Florika Lika EBT] ¶¶ 15; Ex I [Ramiz
Curi EBT] ¶¶ 7, 8; Ex J [Myrna Lundberg EBT] ¶¶ 7-10; Ex K [Ornela Flamuri EBT] ¶¶
7-11; Ex L [Aleistan Sempher EBT] ¶¶ 7-9; Ex M [Belkis Perdomo EBT] ¶¶ 8-10; Ex N
[Anila Hasani EBT] ¶¶ 5-6; Ex O [Falcòñeris Holguin EBT] ¶¶ 5-7; Ex P [Jean
Thermidor EBT] ¶¶ 5-7.) Whereas the ultimate result of a full-scale litigation is
uncertain, the settlement provides a certain and immediate recovery. Further, after
exchanging extensive discovery, Class Counsel accounted for the costs of further
discovery, trialand appeal. (Id. ¶¶ 4, 5; see Wal-Mart Stores, Inc. v Visa U.S.A., Inc., 396
F3d 96, 116 [2d Cir 2005] ["A presumption of fairness, adequacy, and reasonableness
may attach to a class settlement reached in arm's-length negotiations between
experienced, capabic counsel after meaningful discovery."] ; Vasquez v TGD Grp., Inc.,
2016 WL 3181150, at *3 [SDNY June 3, 2016].) It was alleged that the Plaintiffs worked
on average 5 to 10 hours of overtime per week. The parties agreed as part of the
settlement to an allocation to each full-time Class Member of approximately 3.5 hours of
overtime per week. (NYSCEF Doc No 102 [2d Supp Aff Newhouse] ¶ 20.) Moreover,
this Court finds that the Settlement was reached as a result of arm's-length negotiations
between experienced counsel who routinely practice same or similar class action
litigation each taking into account their strong points and weak points. (NYSCEF Doc No
Members'
88 [Newhouse Supp Aff] ¶¶ 4-8.) Lastly, Class recovery based upon the
agreed allocation of overtime is between thirty-five (35) and seventy (70) percent,
depending on their alleged overtime hours, which is a reasonable percentage recovery in
light of the risks involved in further litigation. (See In re Bear Stearns Cos., Inc. Sec.,
Deriv., & ERISA Litig., 909 F Supp 2d 259, 269 [SDNY 2012] ["[T]here is a range of
reasonableness with respect to a settlement-a range which recognizes the uncertainties
of law and fact in any particular case and the concomitant risks and costs necessarily
inherent in taking any litigation to completion."] ; Raniere v Citigroup Inc., 310 FRD 211,
219 [SDNY 2015] [granting a recovery figure of 23% in light of the risks that plaintiffs
would not be able to establish liability or prove damages in a minimum wages and
overtime pay class action suit]; Siddiky v Union Sq. Hosp. Group, LLC, 2017 WL
161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 5 of 12
Motion No. 004
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
SYSCEF
NYSCEF DOC.
DOC. NO.
NO. 109
23 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 0 6/23/202C
07/06/2021
2198158, at *6 [SDNY May 17, 2017] [granting a recovery figure of 23% in light of the
significant risks ifplaintiffs were to proceed to trial]; see also Gilliam v Addicts
Rehabilitation Center Fund, 2008 WL 782596, at *5 [SDNY 2008] ["Settlement assures
immediate payment of substantial amounts to [c]lass [m]embers, even if itmeans
sacrificing speculative payment of a hypothetically larger amount years down the
road."].) The Court having considered all of the above finds that the Settlement is fair and
reasonable and in the best interest of the Class.
i. Service Awards
5. On November 20, 2019, the Court appointed Named Plaintiff to represent the Class. (Ex
A, NYSCEF Doc No 89 [Order Granting Preliminary Approval].)
6. The Court finds, based upon Named Plaintiff's affidavit and Newhouse's affirmation,
that a service award of $3,000 for Named Plaintiff to be reasonable, given the
contributions she has made to assist with the lawsuit. (Ex D, NYSCEF Doc No 92
[Named Plaintiff Aff] ¶¶ 3-13; Memo in Supp, NYSCEF Doc No 96 [Memo in Supp of
Plaintiffs'
Motion for Final Approval of the Proposed Settlement] at 14.)
7. Service awards have been used by state courts to compensate "the named plaintiffs for
the effort and inconvenience of consulting with counsel over the many years [a] case was
discovery[.]"
active and for participating in (Cox v Microsoft Corp., 26 Misc 3d 1220(A),
*4 [Sup Ct 2007].) Service awards have been found to be "particularly appropriate in the
context[]"
employment where "the plaintiff is often a former or current employee of the
defendant, and thus, by lending his [or her] name to the litigation, he [or she] has, for the
benefit of the class as a whole, undertaken the risk of adverse actions by the employer or
co-workers. (Frank v Eastman Kodak Co., 228 FRD 174, 187 [WDNY 2005] [internal
citations omitted].)
8. According to the moving papers, Named Plaintiff dedicated a significant amount of her
personal time in order to recover unpaid wages for herself and on behalf of her co-
Plaintiffs'
workers. (Memo in Supp of Motion for Final Approval of the Proposed
Settlement at 15-16, citing Named Plaintiff Aff ¶¶ 5-9.) Named Plaintiff claims that she
met with her lawyers before starting the lawsuit and, throughout the lawsuit, has
frequently communicated with her lawyers by phone and e-mail, answered various
questions, provided documents and information (to her lawyers and to ASNY's lawyers),
and also testified during an all-day deposition. Named Plaintiff claims that she took a full
day off of work in order to sit for the all-day deposition. (Named Plaintiff Aff ¶¶ 3-13;
see also 2d Supp Aff Newhouse ¶¶ 21-37.) Named Plaintiff's efforts, which helped move
fees."
the litigation along, "exemplify the very reason courts award service (Compare
Fernandez v Legends Hospitality, LLC, 2015 WL 3932897, at *4 [Sup Ct June 22, 2015]
[acknowledging that the named plaintiff expended considerable time and effort to assist
counsel with the case, "such as informing counsel of detailed factual information
regarding their employment with Defendants initially and as the case progressed,
providing counsel with relevant documents in their possession, participating in litigation
strategy. . .."]and Mancia v HSBC Sec. (USA) Inc., 2016 WL 833232, at *3 [Sup Ct Feb.
161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 6 of 12
Motion No. 004
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
4YSCEF
NYSCEF DOC.
DOC. NO.
NO. 23109 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/23/202C
07/06/2021
19, 2016] with Reyes, et al. v 600 West 169th Rest. Inc. d/b/a Coogan's, et al., 2019 WL
7212476 [Sup Ct Dec. 20, 2019] [This Court declined granting service fees where named
plaintiffs made no showing as to the reasonable value of legal services rendered.].)
Additionally, Named Plaintiff took on a demonstrated personal risk in filing this lawsuit.
Indeed, after the commencement of the instant matter, Named Plaintiff was named as a
defendant in a lawsuit filed by Defendant ASNY. (Id. ¶¶ 10-12; see Frank, 228 FRD at
187.) Named Plaintiff argues that the lawsuit named her as a defendant for retaliatory
reasons, which is disputed by Defendant ASNY. (Ex D, NYSCEF Doc No 92 [Named
Plaintiff Aff] ¶¶ 10-12.) Moreover, the requested payment is within the range of fees
awarded by courts in New York. (See Fernandez, 2015 WL 3932897, at *4 [awarding
service payments totaling $15,000 to named plaintiffs from a settlement fund of $274,998
in a wage and hour class action]; Spagnuoli v Louie's Seafood Rest., LLC, 2018 WL
7413304, at *6 [EDNY Sept. 27, 2018] [awarding service payments totaling $7,500 to
named plaintiffs from a settlement fund of $87,500 in a wage and hour class action]
["Such service awards are common in class action cases and are important to compensate
plaintiffs and opt-in plaintiffs . ..."]; Hastings v Regeis Care Ctr., LLC, 2018 WL
6488279, at *2-3 [NY Sup Ct, Bronx County, 2018] [awarding $35,000 in service fees
from a fund of $850,000 in a wage and hour class action].) Lastly, this request is
unopposed by Defendants and no Class Members have objected to it.(Memo in Supp,
Plaintiffs'
NYSCEF Doc No 96 [Memo in Supp of Motion for Final Approval of the
Proposed Settlement] at 14.)
9. This Court notes that-in a prior, unrelated class action matter-it declined to approve a
service award to the named plaintiffs. (See Reyes, et al.v 600 West 169th Rest. Inc. d/b/a
Coogan's, et al.,2019 WL 7212476 [Sup Ct Dec. 20, 2019].) However, in the instant
matter, the facts and circumstances are different, and the Court holds differently herein.
Moreover, this Court now agrees, as argued by the Plaintiffs, that CPLR 909 does not
preclude the issuance of service awards and is to be evaluated on a case-by-
automatically
case basis and is appropriate in the instant case. Although CPLR 909 was amended in
2011 after Flemming v Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375
(2010), and now provides to allow both representatives "and/or . .. any other person that
class" attorneys'
the court finds has acted to benefit the to recover fees, the legislature did
not at the same time provide for the payment of a service/incentive award or preclude
such a payment. Notwithstanding this lack of an express provision in the CPLR, courts
have continued to grant service/incentive awards to compensate named plaintiffs for their
whole."
efforts expended "for the benefit of the class as a (Hastings, 2018 WL 6488279,
at *2.) Moreover, notwithstanding that the statute does not expressly provide for
service/incentive awards, the statute also does not prohibit such an award. Given the
practice of the courts to grant these awards, the fact that the legislature has not acted to
amend the statute to prohibit such awards might be taken to show legislative intent in
support of such incentive awards. (But see Matter of Leadingage New York, Inc. v Shah,
153 AD3d 10, 23-24 [3d Dept 2017], affd, 32 NY3d 249 [2018] ["[L]egislative inaction,
because of itsinherent ambiguity, affords the most dubious foundation for drawing
positive inferences."].) Further, this Court is üñaware of any post-amendment appellate
court ruling holding that CPLR 909 prohibits the granting of a service award. The Court
is aware that such an issue presented to the Appellate Division would be rare, especially
161194/2017 ARNUTOVSKAYA, 1R1NA vs.ALTERATION GROUP OF NY, LLC Page 7 of12
Motion No. 004
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021
YSCEF
NYSCEF DOC.
DOC. NO.
NO. 23109 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/06/2021
06/23/202(
in the context of the parties seeking the approval of a class action settlement - there
being no incentive by the defendant to object. Considering that the legislature has
provided for class actions and favors class actions in situations as the current matter, it
would appear to align with the legislative purpose to encourage individuals to step
forward to assist in the prosecution of such cases and that a service award be considered
under certain circumstances. Moreover, unlike the settled rule that the legislature must
expressly grant attorney fees to be paid by the losing party, there is no such requirement
for incentive payments. (Cf U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d
592, 597 [2004] ["Itis well settled in New York that a prevailing party may not recover
attorneys'
fees from the losing party except where authorized by statute, agreement or
court rule."].) Accordingly, for all of these reasons, the Court finds that there is no
outright prohibition for the issuance of a service award and such an award is appropriate
in the instant case.
ii. Fee & Cost Payments
10. On November 20, 2019, the Court appointed Virginia & Ambinder LLP as Class
Counsel. (Ex A, NYSCEF Doc No 89 [Order Granting Preliminary Approval]; see also
NYSCEF Doc No 74 [Settlement Agreement].)
11. The Court awards Class Counsel its litigation costs of $2,222 and attorney fees of
Preview
FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 07/06/2021 EXHIBIT I FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 vYSCEF NYSCEF DOC. DOC. NO. NO. 109 23 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/23/202 07/06/2021 ( SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ROBERT DAVID KALISH PART IAS MOTION 29EFM Justice X INDEX NO. 161194/201J___ IRINA ARNUTOVSKAYA, INDIVIDUALLY AND ON MOTION DATE N/A BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, MOTION SEQ. NO. 004 Plaintiffs, - V - ALTERATION GROUP OF NY, LLC, AND RELATED OR MOTION AFFILIATED ENTITIES, JEREMY MILLER, Defendants. -------- -----------X The füllavving e-filed documents, listed by NYSCEF document number (Motion 004) 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 99, 100 were read on this motion to/for MJSCELLANEOUS . Motion by named plaintiff IRINA ARNUTOVSKAYA ("Named Plaintiff"), on behalf of herself Members" and the proposed class ("Class or "Plaintiffs") as defined in the Settlement Agreemeñt ("Settlement") (NYSCEF Doc No 74 [Settlement Agreement] at 2), for Final Approval of Class Action Settlement-including the approval of settlement checks to qualified class members, attorneys' fees and costs, claims administration costs, and for a service award to Named Plaintiff-is granted, without opposition. JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT On Decealeer 19, 2017, Named Plaintiff filed a Class Action Complaint against defendants ALTERATION GROUP OF NY, LLC d/b/a/ ALTERATION SPECIALISTS OF NEW YORK ("ASNY"), and related or affiliated entities, and JEREMY MILLER (collectively "Defendants") alleging that Defendants violated the New York Labor Law ("NYLL") Articles 6 and 19 and 12 New York Codes, Rules, and Regulations ("NYCEE") § 142 by not compensating Plaintiffs for all the hours worked and by maintaining a policy and practice of paying itstailors commissions at a rate lower than the rate promised and further by unlawfully deducting earned Plaintiffs' wages from last paychecks. (NYSCEF Doc No 1 [Class Action Complaint] ¶¶l-4.) The Complaint alleges four causes of action: NYLL - minimum NYLL - overtime (1) wage; (2) NYCEE - unpaid breach of contract. (Id. In compensation; (3) wages; and, (4) ¶¶ 50-87.) addition to the class-wide claims, Named Plaintiff alleges the aforementioned individual claim for breach of her employment contract. (Id.) 161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 1 of 12 Motion No. 004 - - - FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 9YSCEF NYSCEF DOC. DOC. NO. NO. 109 23 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/23/202( 07/06/2021 On March 12, 2019, having heard oral argument, this Court issued an order certifying a class consisting of tailors who worked for ASNY since December 19, 2011. (NYSCEF Doc No 55 [Order Granting Motion for Class Certification] ; see also NYSCEF Doc No 56 [Transcript of Oral Argument on Class Certification] at 19:12-24:19.) The defined class does not include any manager, corporate officer, director, clerical or office workers. (See NYSCEF Doc No 43 [Memorandum in Supp of Motion for Class Certification] at 1; see also Order Granting Motion for Class Certification.) On November 20, 2019, the parties presented to the Court a Proposed Settlement which the Court preliminarily approved. Additionally, the Court also authorized publication of the Notice of Class Action Settlement ("Notice"), Claim Form and Release ("Claim Form"), and the Opt-Out Form (collectively referred to as the "Notice Packet"). (Ex A, NYSCEF Doc No 89 [Order Granting Preliminary Approval].) According to the affidavit of Settlement Claims Administrator Tomasz Kulak ("Kulak") of Martom Solutions LLC ("MSLLC"), on December 27, 2019, the Notice Packet was distributed to the sixty-four (64) Class Members via First Class Mail. (NYSCEF Doc No 91 [Kulak Affj ¶¶ 4, 6.)1 According to Kulak's affidavit, of the sixty-four (64) Notice Packets distributed by First Class Mail, three (3) were returned as undeliverable. (Id. ¶ 8.) MSLLC performed a skip trace and found three (3) new addresses for these Class Members and the Notice Packets were promptly re-mailed. (Id. ¶¶ 7, 8.) Of the three (3) re-mailed Notice Packets, none were returned. (Id. ¶ 8.) Of the sixty-four (64) Class Members, fifteen (15) Class Members responded. (Id. ¶ 9.) Of the fifteen (15) Class Members, fourteen (14) filed claims and are authorized to receive a settlement check. (Id ¶¶ 9, 12.) Only one Class Member opted out of the Settlement. (Id. ¶ 10.)No Class Members objected to the Settlement. (Id. ¶ 11; see also Ex B, NYSCEF Doc No 90 [Notice] at 1 [Objection Deadline].) The Fairness Hearing that was originally scheduled for March 25, 2020, was cancelled due to the COVID-19 pandemic. As per the Notice Packet, all objections to the Settlement were to be submitted by February 25, 2020. (Notice Packet at 1.) According to the moving papers, no Plaintiffs' objections were filed. Notwithstanding the prior notification, on May 6, 2020, firm Virginia & Ambinder, LLP ("Class Counsel")2 mailed a Supplemental Notice to Class Members informing them that the Court was going to evaluate the Settlement based on written submissions and would schedule a Virtual Fairness Hearing for the Class Members ifso requested. (NYSCEF Doc No 100 [Supplemental Notice] ; see also NYSCEF Doc No 99 [Newhouse Supp Aff] ¶ 3.) None of the Supplemental Notices were returned as undeliverable. (NYSCEF Doc No 99 [Newhouse Supp Affj ¶ 4.) No Class Member again objected to the Settlement or requested to appear at a potential Virtual Fairness Hearing. (NYSCEF Doc No 99 [Newhouse Supp Affj ¶ 26.) Under the circumstances, the Court deems the right to appear and be heard at the Fairness Hearing to be satisfied and waived. 1A similarnotice was posted on MSLLC's website, which presently seems not tobe accessible. (NYSCEF Doc No 91 [Kulak Affj ¶¶ 4,6.) Counsel" Counsel" "Flainiill's' 2 Section 1.7 ofthe Settlement Agreement statesthat "Class and shallmean Lloyd Ambinder and Jack Newhõüse ["Newhouse"] of and including Virginia & Ambiñdêr LLP with an address of 40 10004." Broad Street,702 Floor, New York, New York (NYSCEF Doc No 74 [Settlement Agreement].) 161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 2 of 12 Motion No. 004 - - -- FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 YSCEF NYSCEF DOC. DOC. NO . NO. 10 23 9 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/23 / 202( 07/06/2021 Having considered the Motion for Final Approval of Class Action Settlement and the record in this matter, for the reasons set forth in the written submissions by the parties, and for good cause shown, Accordingly, it ishereby, ORDERED that A. Certification of the Class 1. Pursuant to CPLR 901 and 902, the Court certifies, for settlement purposes, a Class consisting of all individuals who are presently or were formerly employed as tailors by ASNY from December 19, 2011, to the date of the preliminary approval order, which is November 20, 2019. (NYSCEF Doc No 74 [Settlement Agreement] at 2.) The Class does not include any manager, corporate officer, director, clerical or office workers. (See NYSCEF Doc No 43 [Memorandum in Supp of Motion for Class Certification] at 1; see also Order Granting Motion for Class Certification.) B. Approval of the Settlement 2. The Court grants the Motion for Final Approval of Class Action Settlement,3 including: a) $72,500 for an award of attorneys' fees, expenses, and costs - $38,032.36 of which comes from the Gross Settlement Amount4 and $34,467.64 of which makes up 33.33% or one third of the Gross Payment;5 b) $3,000 for the Service Award to Named Plaintiff from the Gross Settlement Amount; c) $2,000 for the settlement of Named Plaintiff's individual Breach of Contract claim from the Gross Settlement Amount; d) $29,526.42 for Settlement Checks from the Net Settlement Fund;6 and e) $6,787.30 for Claims Administrator's costs from the Net Settlement Fund.7 3 Ina callwith the Court dated June 18, 2020, Plaintiff's Counsel iñf0rmed the Court thatafter theopt-in deadline passed, an additionalclass member sought to opt-in,and Defendants did not object.In lightof thisadditional member opting-in,there may be a slightdiscrepancy in the numbers. 4 Gross Settlement Amount isdefined as themnism amount thatcan be paid by Deféñdãüts and includes all Costs and Fees. Based on the Senlement and Plaintiff'sCounsel Newhouse's letter dated June 18,2020, itis equal to $146,435.29. (NYSCEF Doc No 74 [Senlement Agreement] 1.18 at3 ; seealso NYSCEF Doc No 103 [Newhcuse Letter dated June 18, 2020].) Payment" 5 Gross Payment ("Gross or "Individual Allocations to Class Members") is that portion of the Gross Settlement Amount from which Defendants have agreed topay Class Members. Itisa totalof $103,402.93. (NYSCEF Doc No 90 [Notice];NYSCEF Doc No 103 [Newhouse Letter dated June 18, 2020].) 6 Net Settlement Fund isthat portionof theGross Settlement Amount thatconsists of thefollowing: Individual Allocations to Class Members who have opted intothe Settlement ($29,526.42); Service Award ($3,000); Attorneys' Fees and Costs ($72,500); and Claims Adminhation Fees & Costs ($6,787.30). Itstotalamount equals to $111,813.72. (NYSCEF Doc No 103 [Newhouse Letter dated June 18, 2020].) 7 The balance of theGross Se"lescñt Amount of $32,621.57 was availableto Class Members but was not claimed. As such,this amount willtheoretically revertback to Defendants afterpayroll and any otherapplicable taxes are deducted. Class Counsel statesthatthe payroll taxesare estimated to be about $3,300. (NYSCEF Doc No 103 [Newhouse Letterdated June 18, 2020].) 161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 3 of 12 Motion No. 004 FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 YSCEF NYSCEF DOC. DOC. NO. NO. 109 23 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/23/202( 07/06/2021 3. CPLR 908 requires judicial approval for any compromise of claims brought on a class basis. In determining whether to approve a class action settlement, courts examine "the fairness of the settlement, its adequacy, itsreasonableness, and the best interests of the members." class (Fiala v Metro. Life Ins. Co., Inc., 27 Misc 3d 599, 606 [Sup Ct 2010] [internal citations omitted].) "Adequacy requires balancing the value of that settlement against the present value of the anticipated recovery following a trial on the merits, litigation." discounted for the inherent risks of (Id. at 607 [internal citations and quotations emined].) Relevant factors in determining whether a settlement is fair, reasonable and adequate include: "the likelihood of success, the extent of support from the parties, the judgment of counsel, the presence of bargaining in good faith, and the fact." nature of the issues of law and (In re Colt Indus. Shareholder Litig., 155 AD2d 154, 160 [1st Dept 1990], affd as mod sub nom. Matter of Colt Indus. Shareholder Litig. v Colt Indus. Inc., 77 NY2d 185 [1991] [internal citations omitted].) 4. In the present case, the Court finds that the aforementioned factors overall weigh in favor of approving the Settlement. Although the participation rate is approximately 23% (or 15/64), similar rates have been accepted by courts in New York. (See, e.g., Hernandez v Immortal Rise, Inc., 306 FRD 91, 100 [EDNY 2015] [finding a 20% participation rate reasonable, which is "well above average in class action settlements"); Lopez v The Dinex Group, LLC, 2015 N.Y. Slip Op. 31866[U] [Sup Ct, 2015] [finding a participation rate of 32.8% reasonable].) "Claims-made settlements typically have a participation rate in the range." 10-15 percent (Hernandez, 306 FRD at 100, citing 2 McLaughlin on Class Actions § 6:24 [8th ed.].) The Court is aware that a possible explanation for this rate-which has been referred to by other courts-is that the notice in the mail was mail." treated as "junk (Cf Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J Emp & Lab L 269, 292-94 [2008] [noting that opt-in rates in 2008 ranged between 2% and 89.5%, with a nationwide average of 15.71% due largely to the tendency to "do nothing in response to class notices"]; Noah A. Finkel, State Wage-and-Hour Law Class Actions: 'FLSA' The Real Wave of Litigation?, 7 Employee Rts & Emp Pol'y J 159, 161 [2003].) In addition, there are other factors that might have affected the opt-in rate such as immigration status, language, and educational barriers. (See, e.g., De La Cruz v. Gill Corn Farms, Inc., 2005 U.S. Dist. LEXIS 44675, at *6-7 [NDNY Jan. 25, 2005].) Also, a further factor for the Court's analysis, is only one Class Member has opted out of the Settlement, and none have objected to it.(NYSCEF Doc No 91 [Kulak Aff] ¶¶ 10, 11; see also v Del Global Techs. 186 F 2d 362- 63 [SDNY Maley Corp., Supp 358, 2002].) Further, in the instant case, the approximate 23% participation rate is outweighed by other factors that are in favor of the settlement, such as the risks of litigation. For example, in order to establish their claim, Plaintiffs would have to prove that: (1) they were entitled to receive overtime compensation; and (2) they were not paid adequate overtime compensation. (NYSCEF Doc No 102 [2d Supp Aff Newhouse] ¶ 5.) First, Plaintiffs recognize, for settlement purposes, that regarding the issue of entitlement, the law is unclear as to whether tailors who engaged in alterations may be exempt from statutory overtime and state that no court has specifically ruled on this issue. (Id. ¶¶ 11, 14; see also 29 U.S.C. § 207[i].) Correspondingly, Defendants had argued in their opposition to class certification that Plaintiffs are not entitled to overtime compensation 161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 4 of12 Motion No. 004 FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 vY SCEF NYSCEF DOC . DOC. NO. NO. 109 23 RECEIVED RECEIVED NY SCEF: NYSCEF: 06/23/202( 07/06/2021 under the law. Defendants argued that Class Members are exempt from traditional overtime requirements under FSLA and NYLL and reserved their right to assert such affirmative defenses as part of a forthcoming Motion for Summary Judgment. (Memo in Opp [Seq 002], NYSCEF Doc No 45 [Memo in Opp to Motion for Class Certification] at 2, n. 1.) Secondly, assuming tailors were entitled to overtime, Plaintiffs would then additionally have the burden of proving their damages for such unpaid overtime. In that regard, Plaintiffs would be required to establish the number of hours worked in excess of forty (40) hours in a week and that they were not paid at the proper overtime rate for Plaintiffs' those overtime hours. (Memo in Supp, NYSCEF Doc No 96 [Memo in Supp of Motion for Final Approval of the Proposed Settlement] at 4.) In their opposition to the class certification motion, Defendants denied that Plaintiffs worked more than forty (40) hours in a week, and Defendants further argued that, if they did, they were paid the proper wage. On that prior motion, Defendants had submitted affidavits from one manager and ten tailors to show that Plaintiffs did not work many, if any, overtime hours. (NYSCEF Doc No 46 [Affirm in Opp to Class Certification], Ex H [Dipchand Babooram EBT] ¶ 8 [testifying that allthe tailors knew or know how to scan their time and so their time sheets showing not much overtime work, if any, reflect their time accurately]; see also Ex F [Doris Muscat EBT] ¶¶ 21-24; Ex G [Florika Lika EBT] ¶¶ 15; Ex I [Ramiz Curi EBT] ¶¶ 7, 8; Ex J [Myrna Lundberg EBT] ¶¶ 7-10; Ex K [Ornela Flamuri EBT] ¶¶ 7-11; Ex L [Aleistan Sempher EBT] ¶¶ 7-9; Ex M [Belkis Perdomo EBT] ¶¶ 8-10; Ex N [Anila Hasani EBT] ¶¶ 5-6; Ex O [Falcòñeris Holguin EBT] ¶¶ 5-7; Ex P [Jean Thermidor EBT] ¶¶ 5-7.) Whereas the ultimate result of a full-scale litigation is uncertain, the settlement provides a certain and immediate recovery. Further, after exchanging extensive discovery, Class Counsel accounted for the costs of further discovery, trialand appeal. (Id. ¶¶ 4, 5; see Wal-Mart Stores, Inc. v Visa U.S.A., Inc., 396 F3d 96, 116 [2d Cir 2005] ["A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length negotiations between experienced, capabic counsel after meaningful discovery."] ; Vasquez v TGD Grp., Inc., 2016 WL 3181150, at *3 [SDNY June 3, 2016].) It was alleged that the Plaintiffs worked on average 5 to 10 hours of overtime per week. The parties agreed as part of the settlement to an allocation to each full-time Class Member of approximately 3.5 hours of overtime per week. (NYSCEF Doc No 102 [2d Supp Aff Newhouse] ¶ 20.) Moreover, this Court finds that the Settlement was reached as a result of arm's-length negotiations between experienced counsel who routinely practice same or similar class action litigation each taking into account their strong points and weak points. (NYSCEF Doc No Members' 88 [Newhouse Supp Aff] ¶¶ 4-8.) Lastly, Class recovery based upon the agreed allocation of overtime is between thirty-five (35) and seventy (70) percent, depending on their alleged overtime hours, which is a reasonable percentage recovery in light of the risks involved in further litigation. (See In re Bear Stearns Cos., Inc. Sec., Deriv., & ERISA Litig., 909 F Supp 2d 259, 269 [SDNY 2012] ["[T]here is a range of reasonableness with respect to a settlement-a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion."] ; Raniere v Citigroup Inc., 310 FRD 211, 219 [SDNY 2015] [granting a recovery figure of 23% in light of the risks that plaintiffs would not be able to establish liability or prove damages in a minimum wages and overtime pay class action suit]; Siddiky v Union Sq. Hosp. Group, LLC, 2017 WL 161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 5 of 12 Motion No. 004 FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 SYSCEF NYSCEF DOC. DOC. NO. NO. 109 23 RECEIVED RECEIVED NYSCEF: NYSCEF: 0 6/23/202C 07/06/2021 2198158, at *6 [SDNY May 17, 2017] [granting a recovery figure of 23% in light of the significant risks ifplaintiffs were to proceed to trial]; see also Gilliam v Addicts Rehabilitation Center Fund, 2008 WL 782596, at *5 [SDNY 2008] ["Settlement assures immediate payment of substantial amounts to [c]lass [m]embers, even if itmeans sacrificing speculative payment of a hypothetically larger amount years down the road."].) The Court having considered all of the above finds that the Settlement is fair and reasonable and in the best interest of the Class. i. Service Awards 5. On November 20, 2019, the Court appointed Named Plaintiff to represent the Class. (Ex A, NYSCEF Doc No 89 [Order Granting Preliminary Approval].) 6. The Court finds, based upon Named Plaintiff's affidavit and Newhouse's affirmation, that a service award of $3,000 for Named Plaintiff to be reasonable, given the contributions she has made to assist with the lawsuit. (Ex D, NYSCEF Doc No 92 [Named Plaintiff Aff] ¶¶ 3-13; Memo in Supp, NYSCEF Doc No 96 [Memo in Supp of Plaintiffs' Motion for Final Approval of the Proposed Settlement] at 14.) 7. Service awards have been used by state courts to compensate "the named plaintiffs for the effort and inconvenience of consulting with counsel over the many years [a] case was discovery[.]" active and for participating in (Cox v Microsoft Corp., 26 Misc 3d 1220(A), *4 [Sup Ct 2007].) Service awards have been found to be "particularly appropriate in the context[]" employment where "the plaintiff is often a former or current employee of the defendant, and thus, by lending his [or her] name to the litigation, he [or she] has, for the benefit of the class as a whole, undertaken the risk of adverse actions by the employer or co-workers. (Frank v Eastman Kodak Co., 228 FRD 174, 187 [WDNY 2005] [internal citations omitted].) 8. According to the moving papers, Named Plaintiff dedicated a significant amount of her personal time in order to recover unpaid wages for herself and on behalf of her co- Plaintiffs' workers. (Memo in Supp of Motion for Final Approval of the Proposed Settlement at 15-16, citing Named Plaintiff Aff ¶¶ 5-9.) Named Plaintiff claims that she met with her lawyers before starting the lawsuit and, throughout the lawsuit, has frequently communicated with her lawyers by phone and e-mail, answered various questions, provided documents and information (to her lawyers and to ASNY's lawyers), and also testified during an all-day deposition. Named Plaintiff claims that she took a full day off of work in order to sit for the all-day deposition. (Named Plaintiff Aff ¶¶ 3-13; see also 2d Supp Aff Newhouse ¶¶ 21-37.) Named Plaintiff's efforts, which helped move fees." the litigation along, "exemplify the very reason courts award service (Compare Fernandez v Legends Hospitality, LLC, 2015 WL 3932897, at *4 [Sup Ct June 22, 2015] [acknowledging that the named plaintiff expended considerable time and effort to assist counsel with the case, "such as informing counsel of detailed factual information regarding their employment with Defendants initially and as the case progressed, providing counsel with relevant documents in their possession, participating in litigation strategy. . .."]and Mancia v HSBC Sec. (USA) Inc., 2016 WL 833232, at *3 [Sup Ct Feb. 161194/2017 ARNUTOVSKAYA, IRINA vs.ALTERATION GROUP OF NY, LLC Page 6 of 12 Motion No. 004 FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 4YSCEF NYSCEF DOC. DOC. NO. NO. 23109 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/23/202C 07/06/2021 19, 2016] with Reyes, et al. v 600 West 169th Rest. Inc. d/b/a Coogan's, et al., 2019 WL 7212476 [Sup Ct Dec. 20, 2019] [This Court declined granting service fees where named plaintiffs made no showing as to the reasonable value of legal services rendered.].) Additionally, Named Plaintiff took on a demonstrated personal risk in filing this lawsuit. Indeed, after the commencement of the instant matter, Named Plaintiff was named as a defendant in a lawsuit filed by Defendant ASNY. (Id. ¶¶ 10-12; see Frank, 228 FRD at 187.) Named Plaintiff argues that the lawsuit named her as a defendant for retaliatory reasons, which is disputed by Defendant ASNY. (Ex D, NYSCEF Doc No 92 [Named Plaintiff Aff] ¶¶ 10-12.) Moreover, the requested payment is within the range of fees awarded by courts in New York. (See Fernandez, 2015 WL 3932897, at *4 [awarding service payments totaling $15,000 to named plaintiffs from a settlement fund of $274,998 in a wage and hour class action]; Spagnuoli v Louie's Seafood Rest., LLC, 2018 WL 7413304, at *6 [EDNY Sept. 27, 2018] [awarding service payments totaling $7,500 to named plaintiffs from a settlement fund of $87,500 in a wage and hour class action] ["Such service awards are common in class action cases and are important to compensate plaintiffs and opt-in plaintiffs . ..."]; Hastings v Regeis Care Ctr., LLC, 2018 WL 6488279, at *2-3 [NY Sup Ct, Bronx County, 2018] [awarding $35,000 in service fees from a fund of $850,000 in a wage and hour class action].) Lastly, this request is unopposed by Defendants and no Class Members have objected to it.(Memo in Supp, Plaintiffs' NYSCEF Doc No 96 [Memo in Supp of Motion for Final Approval of the Proposed Settlement] at 14.) 9. This Court notes that-in a prior, unrelated class action matter-it declined to approve a service award to the named plaintiffs. (See Reyes, et al.v 600 West 169th Rest. Inc. d/b/a Coogan's, et al.,2019 WL 7212476 [Sup Ct Dec. 20, 2019].) However, in the instant matter, the facts and circumstances are different, and the Court holds differently herein. Moreover, this Court now agrees, as argued by the Plaintiffs, that CPLR 909 does not preclude the issuance of service awards and is to be evaluated on a case-by- automatically case basis and is appropriate in the instant case. Although CPLR 909 was amended in 2011 after Flemming v Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375 (2010), and now provides to allow both representatives "and/or . .. any other person that class" attorneys' the court finds has acted to benefit the to recover fees, the legislature did not at the same time provide for the payment of a service/incentive award or preclude such a payment. Notwithstanding this lack of an express provision in the CPLR, courts have continued to grant service/incentive awards to compensate named plaintiffs for their whole." efforts expended "for the benefit of the class as a (Hastings, 2018 WL 6488279, at *2.) Moreover, notwithstanding that the statute does not expressly provide for service/incentive awards, the statute also does not prohibit such an award. Given the practice of the courts to grant these awards, the fact that the legislature has not acted to amend the statute to prohibit such awards might be taken to show legislative intent in support of such incentive awards. (But see Matter of Leadingage New York, Inc. v Shah, 153 AD3d 10, 23-24 [3d Dept 2017], affd, 32 NY3d 249 [2018] ["[L]egislative inaction, because of itsinherent ambiguity, affords the most dubious foundation for drawing positive inferences."].) Further, this Court is üñaware of any post-amendment appellate court ruling holding that CPLR 909 prohibits the granting of a service award. The Court is aware that such an issue presented to the Appellate Division would be rare, especially 161194/2017 ARNUTOVSKAYA, 1R1NA vs.ALTERATION GROUP OF NY, LLC Page 7 of12 Motion No. 004 FILED: NEW YORK COUNTY CLERK 07/06/2021 05:29 PM INDEX NO. 651691/2021 YSCEF NYSCEF DOC. DOC. NO. NO. 23109 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/06/2021 06/23/202( in the context of the parties seeking the approval of a class action settlement - there being no incentive by the defendant to object. Considering that the legislature has provided for class actions and favors class actions in situations as the current matter, it would appear to align with the legislative purpose to encourage individuals to step forward to assist in the prosecution of such cases and that a service award be considered under certain circumstances. Moreover, unlike the settled rule that the legislature must expressly grant attorney fees to be paid by the losing party, there is no such requirement for incentive payments. (Cf U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597 [2004] ["Itis well settled in New York that a prevailing party may not recover attorneys' fees from the losing party except where authorized by statute, agreement or court rule."].) Accordingly, for all of these reasons, the Court finds that there is no outright prohibition for the issuance of a service award and such an award is appropriate in the instant case. ii. Fee & Cost Payments 10. On November 20, 2019, the Court appointed Virginia & Ambinder LLP as Class Counsel. (Ex A, NYSCEF Doc No 89 [Order Granting Preliminary Approval]; see also NYSCEF Doc No 74 [Settlement Agreement].) 11. The Court awards Class Counsel its litigation costs of $2,222 and attorney fees of