On April 20, 2023 a
Motion-Secondary
was filed
involving a dispute between
Alexandru Gerea
Individually And On Behalf Of All Others Similarly Situated,
Andras Bago,
and
Aba Koiunov,
La Brochette, Inc.,
for Torts - Other (New York Labor Law)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Index No. 153644/2023
ANDRAS BAGO and ALEXANDRU GERBA,
individually and on behalf of all others similarly situated, Hon. Lisa S. Headley
Plaintiffs, AFFIDAVIT OF PLAINTIFF
ALEXANDRU GEREA IN
- against - SUPPORT OF PLAINTIFFS
ANDRAS BAGO'S AND
LA BROCHETTE, INC. and ABA KOIUNOV, ALEXANDRU GEREA'S
MOTION FOR CLASS
Defendants. CERTIFICATION
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STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
I, ALEXANDRU GERBA, declare under penalty of pe1jmy that the following is hue and
correct:
1. I am a named Plaintiff in the above-captioned action, over 18 years of age, of
sound mind and othe1wise competent to make this Affidavit.
2. The evidence set forth in the foregoing Affidavit is based upon my personal
knowledge.
3. I presently reside in Queens County in the State of New Yark.
4. I was employed by La Brochette, Inc. ("La Brochette") and Aha Koiunov
("Koiunov") (collectively "Defendants") as a tipped employee, specifically a Server, from
approximately December 2017 until approximately January 2020.
5. I worked as a Server for La Brochette at numerous catered events and in the
ordinaiy operation of La Brochette as a restaurant.
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FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023
6. My work schedule varied, but, at all times, I worked full-time at La Brochette.
7. Upon information and belief, prior to early 2019, Defendants classified me and all
other Se1vers' as independent contractors rather than as employees.
8. I do not know the precise number of Servers who worked for Defendants during
the time period from April 20, 2017 to the present.
9. Defendants have sole possession and control over the number of Se1vers who
worked for Defendants during the time period from April 20, 2017 to the present.
10. I do not have access to the names or any other identifying information for all
other Class members.
11. Throughout the time that I worked for Defendants, Defendants claimed a "tip
credit" to pay me and all other Se1vers the "tipped minimum wage" as opposed to the full
minimum wage.
12. Throughout the time that I worked for Defendants, Defendants paid me $10 per
hour.
13. Defendants never provided me with written notice of the tip credit amount that
Defendants were claiming on my wages.
14. In 2019, Defendants instituted, and thereafter maintained, a tip pooling policy
under which Defendants collected the tips received by Servers and then redistributed the tips
according to an unspecified formula.
15. Defendants never provided me or any other Server with written notice advising us
how the tip pooling policy worked.
16. Defendants failed to maintain complete records of tips paid by La Brochette's
customers.
' As set forth in paragraph 3 of the Complaint, the term "Servers" includes all tipped workers.
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FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023
17. Upon information and belief, large checks, between $6,000 and $15,000 were
common at La Brochette.
18. Large percentages of the tips from those large checks disappeared; Defendants
failed to properly account for these tips and failed to pay me or any other Server the tips that we
were owed from these checks.
19. Upon information and belief, La Brochette management kept those tips and, on
some occasions, distributed those tips as kickbacks to customers who brought in large parties.
20. Defendants hosted more than 50 catered events per year at La Brochette.
21. Defendants required Servers who worked at a catered event to work between six
and eight hours.
22. Defendants claimed a tip credit and paid the tipped minimum wage to Servers
who worked at these catered events.
23. At catered events, Defendants provided menus which stated that a "17% gratuity
and 5% administrative fee will be added" to each customer's bill.
24. Upon information and belief, Defendants retained a significant part of the "17%
gratuity" rather than distributing the entirety of the gratuity among their tipped workers.
25. During the time that I worked for Defendants, it was common for Servers to work
more than one shift on the same day.
26. When working on more than one shift, the time between the beginning of the first
shift and the end of the last shift normally exceeded 10 hours.
27. Upon information and belief, Defendants did not provide those workers with
"spread of hours" pay.
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FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023
28. While I was working for Defendants, another Server and I met with an attorney to
explore litigation against the Defendants.
29. Koiunov learned about our meeting with the attorney and asked to meet with me
and the other Server.
30. During that meeting with Koiunov, Koiunov threatened me and the other Server.
He said, "Do you know who I am? I know Rnssians. I can make people disappear."
31. I felt concerned after this meeting; the other Server and I decided not to pursue
litigation at that time.
32. To the best of my knowledge, Plaintiff Bago and I are the only current or former
employees pursuing litigation against La Brochette or Koiunov for their employment practices
and policies.
I declare under penalty of peijury that the foregoing is true and correct. Executed on
October 6, 2023 in New York, New York.
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Document Filed Date
October 06, 2023
Case Filing Date
April 20, 2023
Category
Torts - Other (New York Labor Law)
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FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Index No. 153644/2023 ANDRAS BAGO and ALEXANDRU GERBA, individually and on behalf of all others similarly situated, Hon. Lisa S. Headley Plaintiffs, AFFIDAVIT OF PLAINTIFF ALEXANDRU GEREA IN - against - SUPPORT OF PLAINTIFFS ANDRAS BAGO'S AND LA BROCHETTE, INC. and ABA KOIUNOV, ALEXANDRU GEREA'S MOTION FOR CLASS Defendants. CERTIFICATION - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x STATE OF NEW YORK ) ) SS: COUNTY OF NEW YORK ) I, ALEXANDRU GERBA, declare under penalty of pe1jmy that the following is hue and correct: 1. I am a named Plaintiff in the above-captioned action, over 18 years of age, of sound mind and othe1wise competent to make this Affidavit. 2. The evidence set forth in the foregoing Affidavit is based upon my personal knowledge. 3. I presently reside in Queens County in the State of New Yark. 4. I was employed by La Brochette, Inc. ("La Brochette") and Aha Koiunov ("Koiunov") (collectively "Defendants") as a tipped employee, specifically a Server, from approximately December 2017 until approximately January 2020. 5. I worked as a Server for La Brochette at numerous catered events and in the ordinaiy operation of La Brochette as a restaurant. 1 of 4 FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023 6. My work schedule varied, but, at all times, I worked full-time at La Brochette. 7. Upon information and belief, prior to early 2019, Defendants classified me and all other Se1vers' as independent contractors rather than as employees. 8. I do not know the precise number of Servers who worked for Defendants during the time period from April 20, 2017 to the present. 9. Defendants have sole possession and control over the number of Se1vers who worked for Defendants during the time period from April 20, 2017 to the present. 10. I do not have access to the names or any other identifying information for all other Class members. 11. Throughout the time that I worked for Defendants, Defendants claimed a "tip credit" to pay me and all other Se1vers the "tipped minimum wage" as opposed to the full minimum wage. 12. Throughout the time that I worked for Defendants, Defendants paid me $10 per hour. 13. Defendants never provided me with written notice of the tip credit amount that Defendants were claiming on my wages. 14. In 2019, Defendants instituted, and thereafter maintained, a tip pooling policy under which Defendants collected the tips received by Servers and then redistributed the tips according to an unspecified formula. 15. Defendants never provided me or any other Server with written notice advising us how the tip pooling policy worked. 16. Defendants failed to maintain complete records of tips paid by La Brochette's customers. ' As set forth in paragraph 3 of the Complaint, the term "Servers" includes all tipped workers. 2 of 4 FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023 17. Upon information and belief, large checks, between $6,000 and $15,000 were common at La Brochette. 18. Large percentages of the tips from those large checks disappeared; Defendants failed to properly account for these tips and failed to pay me or any other Server the tips that we were owed from these checks. 19. Upon information and belief, La Brochette management kept those tips and, on some occasions, distributed those tips as kickbacks to customers who brought in large parties. 20. Defendants hosted more than 50 catered events per year at La Brochette. 21. Defendants required Servers who worked at a catered event to work between six and eight hours. 22. Defendants claimed a tip credit and paid the tipped minimum wage to Servers who worked at these catered events. 23. At catered events, Defendants provided menus which stated that a "17% gratuity and 5% administrative fee will be added" to each customer's bill. 24. Upon information and belief, Defendants retained a significant part of the "17% gratuity" rather than distributing the entirety of the gratuity among their tipped workers. 25. During the time that I worked for Defendants, it was common for Servers to work more than one shift on the same day. 26. When working on more than one shift, the time between the beginning of the first shift and the end of the last shift normally exceeded 10 hours. 27. Upon information and belief, Defendants did not provide those workers with "spread of hours" pay. 3 of 4 FILED: NEW YORK COUNTY CLERK 10/06/2023 08:00 PM INDEX NO. 153644/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/06/2023 28. While I was working for Defendants, another Server and I met with an attorney to explore litigation against the Defendants. 29. Koiunov learned about our meeting with the attorney and asked to meet with me and the other Server. 30. During that meeting with Koiunov, Koiunov threatened me and the other Server. He said, "Do you know who I am? I know Rnssians. I can make people disappear." 31. I felt concerned after this meeting; the other Server and I decided not to pursue litigation at that time. 32. To the best of my knowledge, Plaintiff Bago and I are the only current or former employees pursuing litigation against La Brochette or Koiunov for their employment practices and policies. I declare under penalty of peijury that the foregoing is true and correct. Executed on October 6, 2023 in New York, New York. 4 of 4