BALLO v. AUTOMOTIVE LLC LLC (2025)

In this potential class action ¹ law suit pursuant to, inter alia, 12 NYCRR 142-2.1 and 22 NYCRR 142-2.2, plaintiffs move seeking an order pursuant to CPLR § 908, preliminarily approving the proposed class settlement between the parties. Plaintiffs aver that the proposed settlement is fair and reasonable, such that, at the very least, the Court should conditionally certify the class for purposes of settlement, allow notice of the settlement to be provided to the entire class, and schedule a fairness hearing to determine if the approval of final settlement pursuant to CPLR § 908 is warranted. The instant motion is unopposed.

For the reasons that follow hereinafter, the instant motion is granted on default and without opposition.

The instant action is for alleged violations of 12 NYCRR 142-2.1, 12 NYCRR 142-2.4. and New York Labor Law (NYLL) §§ 193, 195, 198, and 663. The complaint alleges, in pertinent part, as follows. Between June 2021 and June 2023, plaintiffs were employed as distribution center workers at a parts distribution center located at 1601 Bronxdale Avenue, Bronx, NY (1601). Plaintiffs were employed by defendant R&J AUTOMOTIVE LLC (R&J) and the parts distribution center was operated by defendant PARTS AUTHORITY, INC. (Parts Authority). R&J and Parts Authority comprised a single employer or a single integrated enterprise because they shared interrelated operations, centralized control of labor relations, common management, and common ownership or financial control. Plaintiffs, who were hired and paid by R&J, worked alongside and performed the same job as those at the distribution center who were employed directly by Parts Authority and R&J's employees were supervised by Parts Authority employees. Defendant RAMCHAN JAGNARANE was R&J's sole officer. As distribution center workers, plaintiffs duties entailed the sorting of auto part orders and preparing them to be delivered to Parts Authority's retail stores. Plaintiff MARDIE BALLO (Ballo) worked for defendants between June 2021 and May 2023 and was paid $15 per hour. Ballo worked from 7am to 6pm, six days per week, averaging 55 hours per week. Plaintiff LUIS GONZALEZ (Gonzalez) worked for defendants between May 2020 and June 2023. Gonzalez was initially paid $11 per hour and then paid $15 per hour. Gonzalez worked eight to 10 hours per day, six days per week. Despite working in excess of 40 hours per week, plaintiffs were never paid the requisite overtime pay. Nor were plaintiffs paid the requisite spread of hours pay for each day they worked in excess of 10 hours. Defendants also deducted $5 dollars per day from plaintiffs wages for transportation that, although defendants provided, plaintiffs never used. Lastly, plaintiffs were never provided with wage and notices or statements. Based on the foregoing, plaintiffs interpose three causes of action. The first cause of action is for a violation of 22 NYCRR 142-2.1 ² , 12 NYCRR 142-2.2, 12 NYCRR 142-2.4, NYLL § 198, and NYLL 663, wherein it is alleged that during plaintiffs’ tenure with defendants, defendants failed to pay them the prevailing minimum wage, the prevailing overtime wages as well as the required spread of hours pay. The second cause of action is for a violation of NYLL § 195(1), wherein it is alleged that defendants failed to provide plaintiffs with the requisite wage notices and wage statements. The last cause of action is for a violation of NYLL § 193, wherein it is alleged defendants made unauthorized deductions from plaintiffs’ wages. It is alleged that the foregoing facts and claims apply equally to all members of the putative class, the class is so numerous that joinder of all members is impracticable, questions of law or fact common to the class predominate over questions of law or fact affecting individual class members, the claims or defenses of the class representatives are typical of those in the class, and a class action represents the superior method of adjudicating the controversy.

Plaintiffs’ application seeking to, inter alia, conditionally certify the class for purposes of settlement and for preliminary approval to settle this matter and schedule a fairness hearing is granted. Significantly, on this record, plaintiffs establish that the proposed settlement is fair thereby warranting the relief sought.

Standard of Review

Pursuant to CPLR § 908, “[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court. Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.” Significantly, notice that an action has been settled must be given to all putative class members even in the absence of class certification and even if the time to seek such certification has expired (Desrosiers v. Perry Ellis Menswear, LLC, 139 A.D.3d 473, 473-474, 30 N.Y.S.3d 630 [1st Dept. 2016], affd, 30 N.Y.3d 488, 68 N.Y.S.3d 391, 90 N.E.3d 1262 [2017] [“Although the time in which to seek class certification had expired pursuant to CPLR 902 by the time defendants sought discontinuance of this case based on the settlement, the court improperly denied plaintiff's application to send CPLR 908 notice to the putative class members․ Thus, the putative class retains an interest in the action, and CPLR 908 is not rendered inoperable simply because the time for the individual plaintiff to move for class certification has expired.”]; Avena v. Ford Motor Co., 85 A.D.2d 149, 150, 447 N.Y.S.2d 278 [1st Dept. 1982] [“The primary issue on the appeal is whether on an application to approve such a compromise at that stage of the action the court can or should dispense with notice to the putative class. Special Term held that notice was mandatory. We agree.”]).

To the extent that Article 9 of the CPLR “is very similar to rule 23 of the Federal Rules of Civil Procedure which governs the bringing of class actions in the Federal court system” (In re Colt Indus. Shareholder Litig., 155 A.D.2d 154, 158, 553 N.Y.S.2d 138 [1st Dept. 1990], affd as mod sub nom. Matter of Colt Indus. Shareholder Litig. v. Colt Indus. Inc., 77 N.Y.2d 185, 565 N.Y.S.2d 755, 566 N.E.2d 1160 [1991]), as is the case in federal court, state courts usually require that the parties to a class action “seek preliminary approval of a class action settlement prior to scheduling a final approval hearing and providing the class with notice thereof” (Saska v. Metro. Museum of Art, 53 Misc.3d 1212[A], *10, 2016 WL 6682271 [Sup. Ct. 2016]; Bhatia v. Piedrahita, 756 F.3d 211, 216-217 [2d Cir. 2014]). Preliminary approval, unlike final approval of the settlement only requires the “initial evaluation of the fairness of the proposed settlement on the basis of written submissions and an informal presentation by the settling parties” (Saska at *10 [internal quotation marks omitted]; Illoldi v. Koi NY LLC, 1:15-CV-6838 (VEC), 2016 WL 3099372, at *1 [S.D.N.Y. May 31, 2016] [“Preliminary approval, what Plaintiffs seek here, is the first step in the settlement process. The purpose of preliminary approval is to simply allow notice to be issued to the class and for class members to either object to or opt-out of the settlement. After the notice period, the Court will be able to evaluate the settlement with the benefit of the class members’ input.”]). Stated differently, the burden on an application for preliminary approval only requires that the proponent presents a quantum of proof sufficient to conclude that the settlement offer is fair enough to warrant the submission of the proposal to all class members so as to thereafter allow a full scale hearing to determine whether the settlement is fair enough to warrant final approval (Saska at *10; In re Traffic Exec. Assn.-E. Railroads, 627 F.2d 631, 634 [2d Cir. 1980] [“However, the granting of permission is not tantamount to a finding that the settlement is fair and reasonable. It is at most a determination that there is what might be termed ‘probable cause’ to submit the proposal to class members and hold a full-scale hearing as to its fairness.”]). Hence, if the court concludes that the proposed settlement is “the product of serious, informed non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the reasonable range of approval” (Saska at *10-11; In re Platinum and Palladium Commodities Litig., 10CV3617, 2014 WL 3500655, at *11 [S.D.N.Y. July 15, 2014]), it should provisionally approve the settlement and order that notice be provided to the entire class (Saska at 11; illoldi at *2).

At a fairness hearing, anyone objecting to the settlement may be heard and can object to the settlement ³ (City Trading Fund v. Nye, 144 A.D.3d 595, 595-96, 43 N.Y.S.3d 21 [1st Dept. 2016] [“The motion court's finding otherwise was, at the very least, premature, and should have awaited a fairness hearing during which opposition from shareholders could have been expressed.”]; see generally Klein v. Robert's Am. Gourmet Food, Inc., 28 A.D.3d 63, 66, 808 N.Y.S.2d 766 [2d Dept. 2006][“One objector withdrew her objection prior to the fairness hearing in exchange for small changes to the Settlement's monitoring provisions and the payment of $33,000 in fees to her attorney out of the $790,000 fund previously requested by the plaintiffs’ counsel. At the fairness hearing, another objector withdrew her objection in exchange for a commitment by the defendants, inter alia, to publish a summary notice of the Settlement (hereinafter the Summary Notice) in a national newspaper within 15 days of the Settlement's approval, and to pay her attorney $25,000 in fees out of the same $790,000 fund. As part of the agreement with that objector, the plaintiffs’ attorney represented to the court that Class members would be given an additional 30 days from the publication of the Summary Notice to opt out despite the fact that the Settlement will have been approved” [internal quotation marks omitted].). Indeed,

the purpose of a fairness hearing is to provide the court with sufficient evidence for it to make an informed decision relating to the fairness of the proposed settlement. The court has the discretion to require any live testimony or documentation it believes would serve the court in its determination and may exclude all unnecessary information

(UAW v. Gen. Motors Corp., 235 F.R.D. 383, 386 [E.D. Mich. 2006], affd sub nom. Intl. Union, United Auto., Aerospace, and Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615 [6th Cir. 2007]). Significantly, a fairness hearing is not a trial, and the trial court determines its conduct and what to consider thereat, which can include documents, affidavits and documents (Union Asset Mgt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 642 [5th Cir. 2012] [“A fairness hearing is not a trial. Historically, courts have commonly relied on affidavits, declarations, arguments made by counsel, and other materials in the record without also requiring live testimony [internal quotation marks omitted]; UAW at 387 [“In sum, a fairness hearing is not a trial, but instead has a very singular and narrow purpose—to determine whether the settlement at issue is fair, reasonable, and adequate. Historically, courts have commonly relied on affidavits, declarations, arguments made by counsel, and other materials in the record without also requiring live testimony. McKnight does not persuade the court that the various forms of the materials provided as evidence constitutes an insufficient record to provide the court with a foundation to determine whether the settlement at issue should be approved.”]).

If class certification has not yet been ordered and if final approval to settle the action is granted, the court must certify a class for settlement purposes, provided that the class definition be narrowly tailored to exclude “individuals who have little connection with the claim being litigated” (Klein at 71, 808 N.Y.S.2d 766), and only include “individuals who are raising the same claims or defenses as the representative” (id. at 71, 808 N.Y.S.2d 766). To that end, the settling court must determine whether class certification pursuant to CPLR §§ 901 and 902 is warranted, and must undertake that analysis “with heightened attention” (Klein at 69, 808 N.Y.S.2d 766 [internal quotation marks omitted]). Thus, the court must determine, pursuant to CPLR § 901 that (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) questions of law or fact common to the class predominate over questions of law or fact affecting individual class members (commonality); (3) the claims or defenses of the class representatives are typical of those in the class (typicality); (4) the class representatives will fairly and adequately protect the interests of the class (adequacy); and (5) a class action represents the superior method of adjudicating the controversy (superiority) are met (Pludeman v. N. Leasing Sys., Inc., 74 A.D.3d 420, 421, 904 N.Y.S.2d 372 [1st Dept. 2010]; Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191, 683 N.Y.S.2d 179 [1st Dept. 1998]; Weinberg v. Hertz Corp., 116 A.D.2d 1, 4, 499 N.Y.S.2d 693 [1st Dept. 1986], affd 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 [1987]). Thereafter, the court, in deciding whether to grant class action certification should then consider the additional factors promulgated by CPLR § 902, namely, the interest of individual class members in maintaining separate actions and the feasibility thereof; the existence of pending litigation regarding the same controversy; the desirability of the proposed class forum; and the difficulties likely to be encountered in managing the class action (Pludeman at 421-422, 904 N.Y.S.2d 372 Ackerman at 191, 683 N.Y.S.2d 179; see also Cooper v. Sleepy's, LLC, 120 A.D.3d 742, 743, 992 N.Y.S.2d 95 [2d Dept. 2014]; Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129, 136, 871 N.Y.S.2d 263 [2d Dept. 2008]).

Once the settlement class has been defined, in determining whether to finally approve a class settlement pursuant to CPLR § 908, the court should then determine if the proposed settlement is fair and adequate (Klein at 70, 808 N.Y.S.2d 766; Rosenfeld v. Bear Stearns & Co., Inc., 237 A.D.2d 199, 199, 655 N.Y.S.2d 473 [1st Dept. 1997]; Weinberger v. Kendrick, 698 F.2d 61, 73 [2d Cir. 1982] [“The central question raised by the proposed settlement of a class action is whether the compromise is fair, reasonable and adequate.”]). The court charged with making such decision is vested with broad discretion in determining whether a class action ought to be settled (Klein v. Robert's Am. Gourmet Food, Inc., 28 A.D.3d 63, 70, 808 N.Y.S.2d 766 [2d Dept. 2006]). Indeed, since the proposed settlement represents an agreement by the named parties and not the entire putative class, the court should “act as the protector of the rights of the absent class members” (Klein at 70, 808 N.Y.S.2d 766; Rosenfeld at 199, 655 N.Y.S.2d 473), and determine that the settlement is fair and adequate for the absent class members (id. at 70, 808 N.Y.S.2d 766). In determining whether the settlement is fair and adequate, the court should consider

the likelihood of [plaintiffs’] success [on the merits], the extent of support from the parties [to the litigation], the judgment of counsel [representing the class], the presence of bargaining in good faith [by defendants], and the nature of the issues of law and fact [in the particular action]

(In re Colt Indus. Shareholder Litig. at 160, 553 N.Y.S.2d 138). Additionally, in cases where the plaintiff is a shareholder, the proposed settlement should also be in the bests interest of putative shareholders and the corporate defendant (Gordon v. Verizon Communications, Inc., 148 A.D.3d 146, 158, 46 N.Y.S.3d 557 [1st Dept. 2017] [“First, as plaintiff argues, the agreed-upon disclosures, corporate governance reforms and any other forms of nonmonetary relief in a proposed settlement should be in the best interests of all of the members of the putative class of shareholders. And second, the proposed settlement should be in the best interest of the corporation” (internal citations omitted).]).

With regard to whether a plaintiff's likelihood of success on the merits militates in favor of the settlement proposed, the threshold is fairness and the court should undertake an analysis of plaintiffs’ likelihood of success on the merits and the terms of settlement proposed (In re Colt Indus. Shareholder Litig. at 160, 553 N.Y.S.2d 138 [“Courts judge the fairness of a proposed compromise by weighing the plaintiff's likelihood of success on the merits against the amount and form of the relief offered in the settlement” (internal quotation marks omitted).]; see Gordon at 156, 46 N.Y.S.3d 557). Logically, the more likely plaintiffs are to succeed, fairness requires a higher settlement offer to reflect the same.

With respect to whether there is support for the settlement, the inquiry is, of course, the number of class members who object to the same (Gordon at 157, 46 N.Y.S.3d 557). If the objections are few and the support is great, settlement should be approved (Gordon at 157, 46 N.Y.S.3d 557 [“although the notice of settlement and final approval was mailed to approximately 2.25 million Verizon shareholders, only three objections to the settlement were filed, all by attorney stockholders, and fewer than 250 Verizon shareholders, or .01 percent, opted out of the settlement. And on this appeal, neither the parties nor the objectors have opposed the proposed settlement. Rather, their sole opposition is to the award of attorneys’ fees. Because the settlement had the overwhelming support of Verizon shareholders, the second factor also weighs in favor of the proposed settlement.”]).

With respect to whether the judgment of counsel militates in favor of settlement, the inquiry is whether counsel representing the class is competent and experienced in class action litigation regarding the subject matter of the case before the court and if so, then counsel's support for the settlement militates in favor of approval (id. at 157, 46 N.Y.S.3d 557 [“Here, the parties were represented by counsel who were competent and experienced in the field of complex class action litigation involving breach of fiduciary duties. Thus, counsel were equipped to assist their respective clients in making a reasonable and informed judgment regarding the fairness of the proposed settlement. Thus, this factor also weighs in favor of the proposed settlement.”]).

Absent evidence to the contrary, the proposed settlement is presumed to be the product of good faith negotiations (Gordon at 157, 46 N.Y.S.3d 557 [“With regard to the fourth factor, the presence of bargaining in good faith, negotiations are presumed to have been conducted at arm's length and in good faith where there is no evidence to the contrary.”]).

Lastly, if the issues of law and fact attendant to the class action are more expeditiously resolved by settlement, then this militates in favor of approving the proposed settlement (Gordon at 157, 46 N.Y.S.3d 557 [“With respect to the fifth Colt factor, the nature of the issues of law and fact, here, plaintiff has abandoned her claims for monetary relief. The remaining issue presented is whether respondents breached their fiduciary duty by failing to make adequate disclosures to the shareholders in the preliminary proxy statement. This issue was more expeditiously resolved by the negotiated settlement process, in which the parties had the opportunity to identify and agree upon the areas in which further disclosure of information would be appropriate. Indeed, a settlement in principle on these issues was reached after two months of discussion.”]).

Discussion

Plaintiff submits the Settlement Agreement and Release (Agreement) executed by the parties. It evinces that the action is being settled for $825,000, from which no more than one third will be paid to plaintiffs’ counsel as legal fees, $5,000 in expenses, and a total of $15,000 to Ballo and Gonzalez, the named plaintiffs as an incentive award. This leaves approximately $530,000 ⁴ to be shared by the class, with each member receiving a share of the settlement amount. The amount to be received by each class member will be calculated by assigning one point for each work week worked by each class member during the class period to obtain a total point score for each class member, adding all of the class members’ point scores to obtain a total denominator, and dividing each class member's total point score by the total denominator to obtain each class member's portion of the net settlement fund and then multiplying that number by the net settlement fund.

Plaintiffs also submit the Claim and Release, which defines the class as those employed by defendants between January 1, 2018 and January 1, 2024.

Plaintiffs’ counsel states that the settlement represents an agreement, after discovery was conducted. Specifically,

Prior to filing the lawsuit, Class Counsel thoroughly investigated the events and transactions underlying the class members and their claims, which included interviewing Plaintiffs about their duties, hours worked, wages received, Defendants’ payroll and scheduling policies, their failure to provide appropriate annual wage notices and their practice of automatically deducting five dollars per day for transportation costs. Class Counsel further investigated these claims through discovery by reviewing the wage records, hour records, and other production that Defendants provided. Through these efforts, Plaintiffs learned that Defendants have approximately 167 employees working as warehouse associates for R & J Automotive LLC at the Parts Authority distribution center where Plaintiffs and the Proposed Class worked at Bronxdale Avenue. This investigation also uncovered Defendants’ maximum liability exposure for unpaid overtime to be approximately $600,000.00 before interest and attorneys’ fees and costs. The investigation also uncovered liability (albeit far lass than the overtime) for minimum wage for the first 40 hours worked and damages for unlawful transportation deductions. With this information, Plaintiffs were able to analyze the strengths and weaknesses of their claims. Plaintiffs also considered, during negotiations, the substantial expense and time necessary to prosecute the litigation through dispositive motions, class certification, trial, post-trial motions and likely appeals, taking into account the significant uncertainties in predicting the outcome of this litigation, which raises complex, novel legal issues. The parties then proceeded to mediation to see if this case can be resolved. The parties engaged the well-qualified, and well-regarded mediator Evan Spelfogel. Prior to the mediation, the parties provided him ex parte mediation statements. Defendants also, before the mediation, provided Plaintiffs with payroll records relevant for the putative class, which is critical information for the parties to assess the company's potential liability exposure. After one full day of mediation with Mr. Spelfogel, during which extensive negotiations between counsel occurred, including the parties debating the claims and defenses, the parties ultimately reached a settlement in principle to resolve this action on a class wide basis for $825,000.

(NY St Elec Filing [NYSCEF] Doc No. 6, Memorandum of Law in Support of Motion for Approval of Class Action Settlement at 3-4).

Plaintiffs, by counsel, aver that their counsel has experience in litigating wage and labor claims, has been previously certified as class counsel, and prior thereto worked with other lawyers in class action cases where they were victorious

Based on the foregoing, the application to preliminarily, certify the class is granted. A review of the complaint, the Agreement, and counsel's experience, establishes that the requisite factors for class certification have been met.

As noted above, if class certification has not yet been ordered and if final approval to settle the action is granted, the court must certify a class for settlement purposes, provided that the class definition be narrowly tailored to exclude “individuals who have little connection with the claim being litigated” (Klein at 71, 808 N.Y.S.2d 766), and only include “individuals who are raising the same claims or defenses as the representative” (id. at 71, 808 N.Y.S.2d 766). To that end, the settling court must determine whether class certification pursuant to CPLR §§ 901 and 902 is warranted, and must undertake that analysis “with heightened attention” (Klein at 69, 808 N.Y.S.2d 766 [internal quotation marks omitted]). Thus, the court must determine, pursuant to CPLR § 901 that (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) questions of law or fact common to the class predominate over questions of law or fact affecting individual class members (commonality); (3) the claims or defenses of the class representatives are typical of those in the class (typicality); (4) the class representatives will fairly and adequately protect the interests of the class (adequacy); and (5) a class action represents the superior method of adjudicating the controversy (superiority) are met (Pludeman at 421, 904 N.Y.S.2d 372; Ackerman at 191, 683 N.Y.S.2d 179; Weinberg at 4, 499 N.Y.S.2d 693). Thereafter, the court, in deciding whether to grant class action certification should then consider the additional factors promulgated by CPLR § 902, namely, the interest of individual class members in maintaining separate actions and the feasibility thereof; the existence of pending litigation regarding the same controversy; the desirability of the proposed class forum; and the difficulties likely to be encountered in managing the class action (Pludeman at 421-422, 904 N.Y.S.2d 372 Ackerman at 191, 683 N.Y.S.2d 179; see also Cooper at 743, 992 N.Y.S.2d 95; Globe Surgical Supply at 136, 871 N.Y.S.2d 263).

Here, the Court finds that all the factors promulgated by CPLR §§ 901 and 902 have been met. Indeed, here, the class is narrowly tailored to include only those who are similarly situated to plaintiffs, worked for defendants at or about the same time, and suffered the same alleged harm. Moreover, here, counsel for plaintiffs states that he has extensive experience prosecuting class actions, such that the interests of all class members are adequately protected. Lastly, given the relatively low damages award for each member of the class, litigating this action as a class action is the superior method of resolving the dispute between defendants and members of the class.

The application to preliminarily approve the class settlement and order a fairness hearing is also granted. Significantly, here, the Court concludes that the settlement is fair.

Again, the requisite inquiry is whether the court concludes that the proposed settlement is “the product of serious, informed non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the reasonable range of approval” (Saska at *10-11; In re Platinum and Palladium Commodities Litig. at *11), and if so, the court should provisionally approve the settlement and order that notice be provided to the entire class (Saska at 11; illoldi at *2). Indeed, in determining whether the settlement is fair and adequate, the court should consider

the likelihood of [plaintiffs’] success [on the merits], the extent of support from the parties [to the litigation], the judgment of counsel [representing the class], the presence of bargaining in good faith [by defendants], and the nature of the issues of law and fact [in the particular action]

(In re Colt Indus. Shareholder Litig. at 160, 553 N.Y.S.2d 138).

Here, counsel for plaintiffs asserts that this settlement is the product of extensive negotiations and crafted after discovery was exchanged, an investigation undertaken, and the parties engaged in mediation. Thus, it is clear that counsel believes the settlement is fair and in the absence of any objection or indeed, opposition to this motion, this Court grants this portion of the instant application. Indeed, given counsel's experience in class action wage cases, his judgment is accorded significant weight and militates in favor of approving the settlement (Gordon at 157, 46 N.Y.S.3d 557 [“Here, the parties were represented by counsel who were competent and experienced in the field of complex class action litigation involving breach of fiduciary duties. Thus, counsel were equipped to assist their respective clients in making a reasonable and informed judgment regarding the fairness of the proposed settlement. Thus, this factor also weighs in favor of the proposed settlement.”]).

To the extent that the order submitted by plaintiffs authorizes the instant settlement and requires a fairness hearing only if any class members object to the settlement, the order is not compliant with the protocol required by law. Again, at this juncture, class certification is only preliminary as is approval of the settlement. Moreover a fairness hearing is not optional and one must be had before the settlement is finally approved. Thus, plaintiffs must submit a proposed order in accordance with this order. Accordingly, it is hereby

ORDERED that the class indicated in the Agreement is preliminarily certified. It is further

ORDERED that the settlement in the Agreement is preliminarily approved. It is further

ORDERED that all parties appear at a fairness hearing, which will be scheduled within the proposed order directed below, after which the Court will determine whether to finally approve the settlement in the Agreement and order final class certification with a class as defined and indicated in the Agreement. It is further

ORDERED that plaintiffs submit a proposed order granting this motion to the extent indicated herein within 30 days hereof. It is further

ORDERED that plaintiffs serve a copy of this Decision and Order with Notice of Entry upon defendants within thirty (30) days hereof.

FOOTNOTES

1.   Other than within this application, where the parties seek to certify the class for purposes of settling this action, plaintiffs have never made a prior application for class certification as required by CPLR §§ 901 and 902.

2.   Although the complaint fails to identify that the violations alleged are promulgated by the orders issued by the NY State Commissioner of the Department of Labor, the Court nevertheless cites the same.

3.   Article 9 of the CPLR contains no statutory mandate. However, the Federal Rules of Civil Procedure requires a fairness hearing before a settlement in a class action is approved (Fed. R. Civ. P. § 23[e][2] [“If the proposal would bind class members, the court may approve it only after a hearing and only on finding that it is fair, reasonable, and adequate.”]).

4.   This sum is derived by capping the legal fees at $275,000, which is less than one third of the settlement proceeds. However, counsel for plaintiffs contends that he only seeks $275,000 in legal fees (NY St Elec Filing [NYSCEF] Doc No. 6, Memorandum of Law in Support of Motion for Approval of Class Action Settlement at 7 [“Class Counsel seeks an attorneys’ fees award of one-third of the Total Settlement Amount, which is $275,000, to be paid from the Gross Settlement Amount, and for reimbursements of their actual costs and expenses of no more than $5,000.”]).

Fidel E. Gomez, J.