Preview
FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of,
Index No. ----/2023
DOORDASH, INC. and GRUBHUB INC.,
Petitioners,
For Judgment Pursuant to CPLR Article 78
- against-
NEW YORK CITY DEPARTMENT OF
CONSUMER AND WORKER PROTECTION
and VILDA VERA MAYUGA, in her official
capacity as Commissioner of the New York
City Department of Consumer and Worker Protection;
Respondents.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
AFFIDAVIT OF DAWN KELLY
STATE OF NEW YORK )
) SS:
COUNTY OF QUEENS )
Dawn Kelly, being first duly sworn, deposes and says:
1. My name is Dawn Kelly. I am an adult over the age of 18, and I am the owner of
The Nourish Spot, located at 107-05 Guy R Brewer Blvd, Jamaica, NY 11433.
2. I submit this affidavit in connection with DoorDash's and Gruhbub's Verified
Article 78 Petition and Application for a Temporary Restraining Order and Preliminary
Iajunction. Except as otherwise stated, this declaration is based upon my personal knowledge.
My Background and the Start of The Nourish Spot
3. After graduating from Howard University, I worked in corporate communications
and public relations for 30 years, including at Prudential Financial.
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FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023
4. In 2015, when I was a mom with two children, my position with the
Communications Team at Prudential was eliminated. I went on several interviews but was
unable to find a fit. I felt demoralized.
5. Then I saw a news segment about rapper Styles P opening a juice bar in
Westchester, and I thought, "I could do that!"
6. I opened The Nourish Spot on September 9,2017-t:wo years to the day of being
let go from Prudential.
7 . My daughter Jade is a trained chef and helped me create the menu. The Nourish
Spot locuses on smoothies, salads, natural juice blends, sandwich wraps, protein waffles, and
yogurt parfaits.
The Nourish Spot's Partnership with Grubhub
8. In either 2017 or 2018, my daughter Jade convinced me that The Nourish Spot
should get on platforms like Grubhub. She recognized the power of marketplace exposure
through apps and told me that the wide Grubhub delivery radius would help us drive more order
volume and revenue.
9. The COVID-l9 pandemic was difficult for my business. There were two
different times that I almost decided to shut down The Nourish Spot.
10. But I persevered. I recall a congressman's wife calling me while I stood in the
rain for two hours at a food supply warehouse. She placed a catering order for firefighters in
Rockaway. Experiences like that convinced me that I needed to keep my busingss going. And it
wouid not have been possible without platforms like Grubhub.
11. Without platforms like Grubhub, The Nourish Spot would not be able to deliver to
its customers. It is not financially feasible for The Nourish Spot to hire its own delivery couflers.
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FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023
12. Many customers first leam of The Nourish Spot on a delivery app like Grubhub,
and these customers not only become repeat delivery customers, but sometimes also decide to
visit in-person as well.
13. The Nourish Spot will only continue to offer delivery service if it remains
profitable. If the cost of providing delivery service increased and I could not furn a profit on
delivery orders, there would be no reason for me to continue offering delivery service.
Deliv Minimum-E Rule Will Affect The Nourish
14. I understand that New York City has passed a rule that will impose a minimum
hourly pay requirement for food-delivery workers who deliver orders on platforms like Grubhub.
I also understand that because of that rule, platforms like Grubhub will incur additional costs to
pay those delivery workers, and likely will have to make changes to the services they offer and
f'ees they charge to consumers. I believe that the changes resulting from this new Rule will
significantly harm The Nourish Spot and its customers.
15. First, I understand that Grubhub may reduce its delivery radius because of the
new rule. This change would be very harmful to The Nourish Spot. We regularly receive
delivery orders from customers outside of our neighborhood, who are unlikely to come The
Nourish Spot in person to place their orders. If those customers could not order our food on
platforms like Grubhub, I will lose their business. That would severely harm my company.
16. Second, I understand that Grubhub likely will have to raise the fees that it charges
customers for delivery. In my experience, many of my customers are sensitive to price and will
not continue to order from us if prices increase significantly (or, at least, will order less
frequently and in smaller amounts). It would be very harmful to my business if I lose out on
orders because of the increased delivery fees.
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FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023
17. Third, I understand that Grubhub may restrict customers from placing small
orders for delivery. Because of the nature of my store, many orders are for small dollar amounts.
If platlorms like Grubhub no longer accept small orders. that would likely have a serious impact
on my business.
18. I support higher wages for delivery workers, but my business cannot afford to lose
business or pay increased costs for delivery. For all of these reasons, I hope that New York
City's new delivery-worker minimum pay rule can be fully considered in the context of the
unintended costs it will impose. And I strongly urge a compromise that enables platforms to
earn the revenue they need to cover these increased costs without hurting independe-rlt restaurants
like mine.
Dated: New York, New York
tuty f,zozt Dawn Kelly
befbre me this of July, 2023.
Miguel A Flores
Nolary Public-State ofNew york
Regisuation No. 01FL6328509
Quaiified in eue€os Coqory
Cenified i! Nassau Covoty - EXp 09.0i,20:J
N Pub
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NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023
ATTORNEY CERTIFICATION PURSUANT TO 22 NYCRR § 202.8-b
I, Gabriel Herrmann, an attorney duly admitted to practice law before the courts of the
State of New York, hereby certify that this Affidavit complies with the word count limit set forth
in 22 NYCRR § 202.8-b because it contains 852 words, excluding the parts of the affidavit
exempted by § 202.8-b(b). In preparing this certification, I have relied on the word count of the
word-processing system used to prepare this affirmation.
Dated: New York, New York
July 6, 2023
/s/ Gabriel Herrmann
Gabriel Herrmann
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Preview
FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of, Index No. ----/2023 DOORDASH, INC. and GRUBHUB INC., Petitioners, For Judgment Pursuant to CPLR Article 78 - against- NEW YORK CITY DEPARTMENT OF CONSUMER AND WORKER PROTECTION and VILDA VERA MAYUGA, in her official capacity as Commissioner of the New York City Department of Consumer and Worker Protection; Respondents. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x AFFIDAVIT OF DAWN KELLY STATE OF NEW YORK ) ) SS: COUNTY OF QUEENS ) Dawn Kelly, being first duly sworn, deposes and says: 1. My name is Dawn Kelly. I am an adult over the age of 18, and I am the owner of The Nourish Spot, located at 107-05 Guy R Brewer Blvd, Jamaica, NY 11433. 2. I submit this affidavit in connection with DoorDash's and Gruhbub's Verified Article 78 Petition and Application for a Temporary Restraining Order and Preliminary Iajunction. Except as otherwise stated, this declaration is based upon my personal knowledge. My Background and the Start of The Nourish Spot 3. After graduating from Howard University, I worked in corporate communications and public relations for 30 years, including at Prudential Financial. 1 of 5 FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023 4. In 2015, when I was a mom with two children, my position with the Communications Team at Prudential was eliminated. I went on several interviews but was unable to find a fit. I felt demoralized. 5. Then I saw a news segment about rapper Styles P opening a juice bar in Westchester, and I thought, "I could do that!" 6. I opened The Nourish Spot on September 9,2017-t:wo years to the day of being let go from Prudential. 7 . My daughter Jade is a trained chef and helped me create the menu. The Nourish Spot locuses on smoothies, salads, natural juice blends, sandwich wraps, protein waffles, and yogurt parfaits. The Nourish Spot's Partnership with Grubhub 8. In either 2017 or 2018, my daughter Jade convinced me that The Nourish Spot should get on platforms like Grubhub. She recognized the power of marketplace exposure through apps and told me that the wide Grubhub delivery radius would help us drive more order volume and revenue. 9. The COVID-l9 pandemic was difficult for my business. There were two different times that I almost decided to shut down The Nourish Spot. 10. But I persevered. I recall a congressman's wife calling me while I stood in the rain for two hours at a food supply warehouse. She placed a catering order for firefighters in Rockaway. Experiences like that convinced me that I needed to keep my busingss going. And it wouid not have been possible without platforms like Grubhub. 11. Without platforms like Grubhub, The Nourish Spot would not be able to deliver to its customers. It is not financially feasible for The Nourish Spot to hire its own delivery couflers. 2 of 5 FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023 12. Many customers first leam of The Nourish Spot on a delivery app like Grubhub, and these customers not only become repeat delivery customers, but sometimes also decide to visit in-person as well. 13. The Nourish Spot will only continue to offer delivery service if it remains profitable. If the cost of providing delivery service increased and I could not furn a profit on delivery orders, there would be no reason for me to continue offering delivery service. Deliv Minimum-E Rule Will Affect The Nourish 14. I understand that New York City has passed a rule that will impose a minimum hourly pay requirement for food-delivery workers who deliver orders on platforms like Grubhub. I also understand that because of that rule, platforms like Grubhub will incur additional costs to pay those delivery workers, and likely will have to make changes to the services they offer and f'ees they charge to consumers. I believe that the changes resulting from this new Rule will significantly harm The Nourish Spot and its customers. 15. First, I understand that Grubhub may reduce its delivery radius because of the new rule. This change would be very harmful to The Nourish Spot. We regularly receive delivery orders from customers outside of our neighborhood, who are unlikely to come The Nourish Spot in person to place their orders. If those customers could not order our food on platforms like Grubhub, I will lose their business. That would severely harm my company. 16. Second, I understand that Grubhub likely will have to raise the fees that it charges customers for delivery. In my experience, many of my customers are sensitive to price and will not continue to order from us if prices increase significantly (or, at least, will order less frequently and in smaller amounts). It would be very harmful to my business if I lose out on orders because of the increased delivery fees. 3 of 5 FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023 17. Third, I understand that Grubhub may restrict customers from placing small orders for delivery. Because of the nature of my store, many orders are for small dollar amounts. If platlorms like Grubhub no longer accept small orders. that would likely have a serious impact on my business. 18. I support higher wages for delivery workers, but my business cannot afford to lose business or pay increased costs for delivery. For all of these reasons, I hope that New York City's new delivery-worker minimum pay rule can be fully considered in the context of the unintended costs it will impose. And I strongly urge a compromise that enables platforms to earn the revenue they need to cover these increased costs without hurting independe-rlt restaurants like mine. Dated: New York, New York tuty f,zozt Dawn Kelly befbre me this of July, 2023. Miguel A Flores Nolary Public-State ofNew york Regisuation No. 01FL6328509 Quaiified in eue€os Coqory Cenified i! Nassau Covoty - EXp 09.0i,20:J N Pub 4 of 5 FILED: NEW YORK COUNTY CLERK 07/06/2023 11:59 AM INDEX NO. 155947/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 07/06/2023 ATTORNEY CERTIFICATION PURSUANT TO 22 NYCRR § 202.8-b I, Gabriel Herrmann, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Affidavit complies with the word count limit set forth in 22 NYCRR § 202.8-b because it contains 852 words, excluding the parts of the affidavit exempted by § 202.8-b(b). In preparing this certification, I have relied on the word count of the word-processing system used to prepare this affirmation. Dated: New York, New York July 6, 2023 /s/ Gabriel Herrmann Gabriel Herrmann 5 of 5