Preview
FILED: NEW YORK COUNTY CLERK 08/14/2023 06:57 PM INDEX NO. 153644/2023
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ANDRAS BAGO and ALEXANDRU GEREA,
individually and on behalf of all others similarly situated, AFFIRMATION IN REPLY TO
DEFENDANTS’ OPPOSITION
Plaintiffs,
Motion Seq. No. 1
- against -
Index No. 153644/2023
LA BROCHETTE, INC. and ABA KOIUNOV,
Defendants.
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Jeremiah Iadevaia, an attorney duly admitted to practice law in the State of New York,
hereby affirms under the penalties of perjury that:
1. I am a partner with the law firm of Vladeck, Raskin & Clark, P.C. and we represent
the Plaintiffs Andras Bago (“Bago”) and Alexandru Gerea (“Gerea”) (collectively, “Plaintiffs”) in
the above captioned matter against Defendants La Brochette, Inc. and Aba Koiunov (collectively,
“Defendants”). I write in further support of the motion by Plaintiffs to extend respectfully the time
to file their motion for class certification until such time as a preliminary conference has been
convened, and the Court has set dates to: (i) complete pre-class certification discovery; (ii) for
Plaintiffs to move for class certification; and (iii) for such other actions that the Court may direct.
2. Prior to filing the instant motion, Plaintiffs’ counsel sent a copy of the proposed
order to Defendants’ counsel, who expressed no objections to the relief sought. That
correspondence is attached hereto as Exhibit A.
3. In addition, contrary to Defendants’ argument (Dkt. 10 ¶ 3), Plaintiffs have good
cause to seek an extension of time for pre-class certification discovery in this action. Stewart v.
Roberts, 163 A.D.3d 89, 96 (3d Dept 2018) (“Timely requests for disclosure on the issue of
1300411 v1
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numerosity must be granted.”). Additional time to conduct pre-class certification discovery is
proper, in this instance, to ascertain “the dimensions of the group of individuals who share
plaintiffs’ grievance[.]” Moreno v. Future Care Health Servs., Inc., 43 Misc. 3d 1202(A), 992
N.Y.S.2d 159 (Sup. Ct., Kings County 2014). Such information is in the sole custody and control
of Defendants and not obtainable by Plaintiffs without discovery. See Meraner v. Albany Med.
Ctr., 199 A.D.2d 740, 742 (3d Dept 1993) (“plaintiffs are entitled to discovery to adduce evidence
to meet their burden of showing that the statutory prerequisites for certification of a class are
met”). 1
4. Specifically, Plaintiffs seek discovery on topics relating to numerosity and
typicality of the proposed class, including: the identities of servers and other employees beyond
Plaintiffs who were employed during the relevant time period; for those employees, their
compensation information, including whether Defendants paid them the tipped minimum wage;
for those employees, their job descriptions and job duties; for those employees, their dates of hire
or retention and their end dates, where applicable; and for those employees, their hours worked.
See Dabrowski v. Abax Inc., 84 A.D.3d 633, 634 (1st Dept 2011) (rate of pay, hours worked, and
job titles were relevant to class certification).
1
The cases that Defendants cite are distinguishable. (Dkt. 10 ¶ 3) For example, in Cooper-Nolasco
v. Royal Waste Services Inc, No. 653586/2021, 2022 WL 4397646, at *1 (N.Y. Sup. Ct. Sep. 15,
2022), the deadline to move for class certification had expired prior to the filing of the motion,
which is not the case here. Plaintiffs’ deadline is August 11, 2023 and they moved on or about July
27, 2023. In addition, in Zou v. 2953 Broadway Inc., 79 Misc. 3d 1215(A), 190 N.Y.S.3d 272
(N.Y. Sup. Ct. 2023), Plaintiff had access to prior discovery from a parallel federal action and
there was no explanation as to why they needed additional information. Severin v. Platinum Home
Health Care Inc., No. 153301/2017, 2017 WL 4168213, at *1 (N.Y. Sup. Ct. Sep. 15, 2017),
involved vastly different circumstances, including that Defendants had failed to appear or answer.
2
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5. Plaintiffs intend to serve discovery requests shortly, given that Defendants had
previously consented to an extension of time for class certification to allow time for pre-class
certification discovery.
6. Plaintiffs respectfully submit that this Court should: (1) schedule a preliminary
conference as conveniently possible so that the parties may set forth a pre-class certification
discovery schedule, allowing reasonable time for all parties to serve and respond to pre-class
certification discovery demands; and (2) set a Court-authorized briefing schedule for the class
certification motion, and for any cross-motions that the Defendants may wish to bring.
Dated: New York, New York
August 14, 2023
VLADECK, RASKIN & CLARK, P.C.
By: /s/ Jeremiah Iadevaia
Jeremiah Iadevaia
565 Fifth Avenue, 9th Floor
New York, New York 10017
(212) 403-7300
jiadevaia@vladeck.com
Attorneys for Andras Bago and
Alexandru Gerea
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Preview
FILED: NEW YORK COUNTY CLERK 08/14/2023 06:57 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x ANDRAS BAGO and ALEXANDRU GEREA, individually and on behalf of all others similarly situated, AFFIRMATION IN REPLY TO DEFENDANTS’ OPPOSITION Plaintiffs, Motion Seq. No. 1 - against - Index No. 153644/2023 LA BROCHETTE, INC. and ABA KOIUNOV, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Jeremiah Iadevaia, an attorney duly admitted to practice law in the State of New York, hereby affirms under the penalties of perjury that: 1. I am a partner with the law firm of Vladeck, Raskin & Clark, P.C. and we represent the Plaintiffs Andras Bago (“Bago”) and Alexandru Gerea (“Gerea”) (collectively, “Plaintiffs”) in the above captioned matter against Defendants La Brochette, Inc. and Aba Koiunov (collectively, “Defendants”). I write in further support of the motion by Plaintiffs to extend respectfully the time to file their motion for class certification until such time as a preliminary conference has been convened, and the Court has set dates to: (i) complete pre-class certification discovery; (ii) for Plaintiffs to move for class certification; and (iii) for such other actions that the Court may direct. 2. Prior to filing the instant motion, Plaintiffs’ counsel sent a copy of the proposed order to Defendants’ counsel, who expressed no objections to the relief sought. That correspondence is attached hereto as Exhibit A. 3. In addition, contrary to Defendants’ argument (Dkt. 10 ¶ 3), Plaintiffs have good cause to seek an extension of time for pre-class certification discovery in this action. Stewart v. Roberts, 163 A.D.3d 89, 96 (3d Dept 2018) (“Timely requests for disclosure on the issue of 1300411 v1 1 of 3 FILED: NEW YORK COUNTY CLERK 08/14/2023 06:57 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/14/2023 numerosity must be granted.”). Additional time to conduct pre-class certification discovery is proper, in this instance, to ascertain “the dimensions of the group of individuals who share plaintiffs’ grievance[.]” Moreno v. Future Care Health Servs., Inc., 43 Misc. 3d 1202(A), 992 N.Y.S.2d 159 (Sup. Ct., Kings County 2014). Such information is in the sole custody and control of Defendants and not obtainable by Plaintiffs without discovery. See Meraner v. Albany Med. Ctr., 199 A.D.2d 740, 742 (3d Dept 1993) (“plaintiffs are entitled to discovery to adduce evidence to meet their burden of showing that the statutory prerequisites for certification of a class are met”). 1 4. Specifically, Plaintiffs seek discovery on topics relating to numerosity and typicality of the proposed class, including: the identities of servers and other employees beyond Plaintiffs who were employed during the relevant time period; for those employees, their compensation information, including whether Defendants paid them the tipped minimum wage; for those employees, their job descriptions and job duties; for those employees, their dates of hire or retention and their end dates, where applicable; and for those employees, their hours worked. See Dabrowski v. Abax Inc., 84 A.D.3d 633, 634 (1st Dept 2011) (rate of pay, hours worked, and job titles were relevant to class certification). 1 The cases that Defendants cite are distinguishable. (Dkt. 10 ¶ 3) For example, in Cooper-Nolasco v. Royal Waste Services Inc, No. 653586/2021, 2022 WL 4397646, at *1 (N.Y. Sup. Ct. Sep. 15, 2022), the deadline to move for class certification had expired prior to the filing of the motion, which is not the case here. Plaintiffs’ deadline is August 11, 2023 and they moved on or about July 27, 2023. In addition, in Zou v. 2953 Broadway Inc., 79 Misc. 3d 1215(A), 190 N.Y.S.3d 272 (N.Y. Sup. Ct. 2023), Plaintiff had access to prior discovery from a parallel federal action and there was no explanation as to why they needed additional information. Severin v. Platinum Home Health Care Inc., No. 153301/2017, 2017 WL 4168213, at *1 (N.Y. Sup. Ct. Sep. 15, 2017), involved vastly different circumstances, including that Defendants had failed to appear or answer. 2 2 of 3 FILED: NEW YORK COUNTY CLERK 08/14/2023 06:57 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/14/2023 5. Plaintiffs intend to serve discovery requests shortly, given that Defendants had previously consented to an extension of time for class certification to allow time for pre-class certification discovery. 6. Plaintiffs respectfully submit that this Court should: (1) schedule a preliminary conference as conveniently possible so that the parties may set forth a pre-class certification discovery schedule, allowing reasonable time for all parties to serve and respond to pre-class certification discovery demands; and (2) set a Court-authorized briefing schedule for the class certification motion, and for any cross-motions that the Defendants may wish to bring. Dated: New York, New York August 14, 2023 VLADECK, RASKIN & CLARK, P.C. By: /s/ Jeremiah Iadevaia Jeremiah Iadevaia 565 Fifth Avenue, 9th Floor New York, New York 10017 (212) 403-7300 jiadevaia@vladeck.com Attorneys for Andras Bago and Alexandru Gerea 3 3 of 3