[*1]
Antoine v Bhrags Home Care, Corp.
2018 NY Slip Op 51501(U) [61 Misc 3d 1214(A)]
Decided on September 18, 2018
Supreme Court, Kings County
Cohen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 18, 2018
Supreme Court, Kings County


Louise Antoine, Individually and on Behalf of All Other Persons Similarly Situated who were employed by Bhrags Home Care, Corp., and/or Bhrags, Inc., Along with Other Entities Affiliated or Controlled by Bhrags Home Care, Corp., and/or Bhrags, Inc., Plaintiffs,

against

Bhrags Home Care, Corp., and/or Bhrags, Inc., Defendants.




501843/2018



Appearances of Counsel:

For Plaintiffs: LaDonna M. Lusher, Virginia & Ambinder, LLP, 40 Broad Street, 7th Floor
New York, New York 10004

For Defendants: Robert J. Fluskey, Jr., Emina Poricanin and Matthew K. Parker, Hodgson Russ LLP, The Guaranty Building, 140 Pearl Street, Suite 100, Buffalo, New York 14202


Devin P. Cohen, J.

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed ______

Answering Affidavits 2

Replying Affidavits 3

Exhibits ____

Other _____

Upon review of the foregoing papers, defendants' motion to compel arbitration and to stay this action is decided as follows:

Plaintiff brought this action on behalf of herself, and a potential class of plaintiffs who performed work for defendants, to recover unpaid wages pursuant to New York Labor Law and certain government contracts. Defendants contend that this action should be stayed in favor of arbitration, pursuant to the 2015 Memorandum of Agreement (the "2015 MOA") that extended [*2]and amended the Collective Bargaining Agreement (the "CBA") between plaintiff's union and defendants. Roberto Samedy, the Executive Director of defendant Bhrags Home Care, provides a copy of the 2015 MOA as an exhibit to his moving affidavit. The 2015 MOA was "effective December 1, 2015 . . . through March 31, 2017" (2015 MOA at 1). The 2015 MOA also states:

[A]ll claims brought by either the Union or Employees, asserting violations of or arising under the Fair Labor Standards Act ("FLSA" ), New York Home Care Worker Wage Parity Law, or New York Labor Law (collectively, the "Covered Statutes" ), in any manner, shall be subject exclusively, to the grievance and arbitration procedures described in this Article.

(2015 MOA at 8). In addition, the 2015 MOA provides that it must be ratified by plaintiff's union (2015 MOA at 10). Defendants established that the 2015 MOA was ratified by the union on February 16, 2016 (see 1199SIEU notification letter, dated February 23, 2016, attached as Exhibit 2 to the affidavit of Emina Poricanin).

New York favors resolution by arbitration when parties agree to such a process and where the claims at issue are covered by the arbitration agreement (Markowits v Friedman, 144 AD3d 993, 996-97 [2d Dept 2016]). The wage claims asserted by the plaintiff and prospective class are covered by the 2015 MOA's arbitration provision. Additionally, the parties agreed to arbitration because plaintiff and the class were represented by their union, who executed the CBA and 2015 MOA (Plummer v Klepak, 48 NY2d 486, 489-90 [1979]; Wiener v Bd. of Educ. of E. Ramapo Cent. School Dist., 90 AD2d 832, 833 [2d Dept 1982]).

Plaintiff objects to the 2015 MOA because, she claims, she was not employed by defendants when the 2015 MOA was ratified. However, the 2015 MOA does not state that it is effective when it is ratified. Rather, it states that it is effective as of December 1, 2015, and merely subject to ratification. Consequently, the effective date of the 2015 MOA, and not the date of ratification, determines whether plaintiff is bound to its terms (compare Chu v Chinese-Am. Planning Council Home Attendant Program, Inc., 194 F Supp 3d 221, 228 [SDNY 2016] [plaintiff was not bound by the modified collective bargaining agreement because the plaintiff left defendant's employ before the effective date of the modification]; compare also Konstantynovska v Caring Professionals, Inc., 2018 NY Slip Op 31475[U], *12-15 [Sup Ct, New York County 2018]).

Mr. Samedy states that defendants attempted to assign cases to plaintiff, and only terminated her on December 31, 2015, when she failed to respond to their overtures (affidavit of Roberto Samedy at ¶ 4). Plaintiff's complaint estimates a date that plaintiff's employment ended. However, it does not provide any specific date and the complaint is unverified, and therefore ineffective to establish any fact (Goodman v New York City Health & Hosps. Corp., 2 AD3d 581, 581 [2d Dept 2003]).[FN1] In contrast, Mr. Samedy states he has personal knowledge of these facts as an officer of defendant Bhrags Home Care (Frankel v Citicorp Ins. Services, Inc., 80 [*3]AD3d 280, 284-85 [2d Dept 2010]). Because plaintiff was an employee of defendants on December 1, 2015, she is bound by the 2015 MOA's terms, including the arbitration provision.

By the same reasoning, plaintiff is bound by the 2015 MOA even though she is not currently an employee of defendants. Her claims arose from her employment with defendants. Therefore, she is subject to the same dispute resolution procedure as other employees.For the reasons stated above, defendants' motion to compel arbitration and stay this action is granted. This action is stayed until further order of this court.

This constitutes the decision and order of the court.



DATE September 18, 2018
Devin P. Cohen
Acting Justice, Supreme Court

Footnotes


Footnote 1:Although plaintiff asserts that the court must accept her complaint allegation as true, plaintiff's support for this proposition are federal cases. As this is a matter of procedure, not substantive law, plaintiff's federal cases are not applicable (Hayes v County Bank, 26 AD3d 465, 466 [2d Dept 2006]).