BAGO v. LA BROCHETTE INC (2025)

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered on or about May 2, 2025, which granted plaintiffs’ motion pursuant to CPLR article 9 for class certification on their wage and hour claims, unanimously affirmed, without costs, on the condition that plaintiffs file an affirmation in Supreme Court waiving their claim for liquidated damages under the Labor Law.

The court properly exercised its discretion by granting plaintiffs’ motion for certification of the proposed class, because a class action is the appropriate method for adjudicating wage claims arising from an employer's alleged practice of underpaying its employees (see Lewis v. Hallen Constr. Co., Inc., 193 A.D.3d 511, 512, 141 N.Y.S.3d 857 [1st Dept. 2021];  see also Weinstein v. Jenny Craig Operations, Inc., 138 A.D.3d 546, 547, 30 N.Y.S.3d 618 [1st Dept. 2016]).  Plaintiffs have shown that the number of potential class members identified exceeds any reasonable numerosity threshold (see Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399, 998 N.Y.S.2d 729, 23 N.E.3d 997 [2014], citing Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 [2d Cir.1995]).  Defendants acknowledge that there are 79 individuals who could meet plaintiffs’ proposed class definition, and other evidence suggests that defendants employed at least 20 servers at any given time.

Plaintiffs satisfied the commonality requirement by alleging that defendants engaged in a pattern of unlawful employment practices that included tip pooling, withholding of tips, and failure to keep accurate time records (see Stanton v. Dragonetti Bros. Landscaping Nursery & Florist Inc., 238 A.D.3d 578, 578–579, 232 N.Y.S.3d 145 [1st Dept. 2025]).  Plaintiffs also showed typicality, as their wage claims arise from the same course of conduct giving rise to the claims by other putative class members (see Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 424, 904 N.Y.S.2d 372 [1st Dept. 2010]).

While the motion court properly certified the class, it should also have required that plaintiffs waive their claim for liquidated damages under the Labor Law (see CPLR 901(b);  Brown v. Mahdessian, 206 A.D.3d 511, 511, 168 N.Y.S.3d 684 [1st Dept. 2022] [class certification not barred where the liquidated damages authorized by the relevant statutes qualified as non-mandatory penalties, and counsel asserted that the plaintiff did not seek penalties]).