FILED: NEW YORK COUNTY CLERK 10/14/ :36 PM INDEX NO /2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/14/2016

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1 FILED: NEW YORK COUNTY CLERK 10/14/ :36 PM INDEX NO /2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x MEI KUM CHU, SAU KING CHUNG, and QUN XIANG LING, individually and on behalf of all others similarly situated, Plaintiffs, - against - Index No /2016 CHINESE-AMERICAN PLANNING COUNCIL HOME ATTENDANT PROGRAM, INC., Defendant x PLAINITFFS MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS OR STAY PLAINTIFFS COMPLAINT Carmela Huang, Esq. S. Tito Sinha, Esq. URBAN JUSTICE CENTER 123 William Street, 16 th Floor New York, NY Tel: (646) Michael Taubenfeld, Esq. SERRINS FISHER LLP 233 Broadway, Suite 2340 New York, NY Tel: (212) Edward Tuddenham, Esq. 228 W. 137 th Street New York, NY Tel: (212) Attorneys for Plaintiffs 1 of 14

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS... 2 A. Factual Background of This Case and Plaintiffs Complaint B. Relevant Procedural History ARGUMENT... 4 THE COURT SHOULD DENY DEFENDANT S MOTION TO DISMISS OR STAY PLAINTIFFS COMPLAINT... 4 A. There is No Identity Between the Instant Plaintiffs and the Chan Plaintiffs... 4 B. The Court Should Exercise its Discretion to Deny Defendant s Motion in Order to Avoid Prejudice to Plaintiffs and Follow the Law of the Case... 8 CONCLUSION i 2 of 14

3 TABLE OF AUTHORITIES CASES: Astil v. Kumquat Properties, LLC, 125 A.D.3d 522 (1 st Dept. 2015)... 6 Cellino & Barnes, P.C. v. Law Office of Christopher J. Cassar, P.C., 140 A.D.3d 1732, 1734 (4 th Dept. 2016)... 5, 5-6, 8 Chan v. Chinese-American Planning Council Home Attendant Program, Inc., 15-cv (S.D.N.Y. February 3, 2016)... 1, 7 Chan v. Zoullas, 34 Misc.3d 1210(A), 2012 WL (Sup. Ct. N.Y. Cnty. Jan. 10, 2012)... 7, 8 Chu v. Chinese-American Planning Council Home Attendant Program, Inc., 1:16-cv KBF, 2016 WL (S.D.N.Y. July 11, 2016) 1, 3-4, 7, 9 City of New York v. Maul, 14 N.Y.3d 499, 510 (2010)... 6 Hess v. Wojcik-Hess, 86 A.D.3d 847, (3 rd Dept. 2011).10 Holick v. Cellular Sales of New York LLC, 802 F.3d 391, 395 (2 nd Cir. 2015)... 9 JLM Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 171 (2 nd Cir. 2004)... 9 Jones-Bartley v. McCabe, Weisberg & Conway, P.C., 59 F. Supp. 3d 617, 638 (S.D.N.Y. 2014)... 6 L-3 Communications Corp. v. SafeNet, Inc., 45 A.D.3d 1, 8 (1 st Dept. 2007)... 8 Matter of Howard v. New York State Dept. of Social Servs., 142 A.D.2d 773, 774 (3 rd Dept. 1988)... 6 Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975) , 10 Morgulas v. J. Yudell Realty, Inc., 161 A.D.2d 211, 213 (1 st Dept. 1990)... 5 Proietto v. Donahue, 189 A.D.2d 807 (2 nd Dept. 1993)... 5, 6 RPG Consulting, Inc. v. Zormati, 82 A.D.3d 739, 740 (2 nd Dept. 2011)..10 Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 A.D.3d 783, 784 (2 nd Dept. 2013)... 4, 5 Syncora Guarantee Inc. v. J.P. Morgan Securities LLC, 110 A.D.3d 87 (1 st Dept. 2013)... 4, 5 ii 3 of 14

4 Tadco Constr. Corp. v. Centennial Ins. Co., 2008 WL , at *8-9 (Sup. Ct. N.Y. Cnty. Oct. 7, 2008)... 5 Truck Drivers Local Union No. 807, I.B.T. v. Reg'l Imp. & Exp. Trucking Co., 944 F.2d 1037, 1042 (2 nd Cir. 1991).9 STATUTES: Fed.R.Civ.P. (23)(c)(1)... 6 Federal Arbitration Act... 3 CPLR CPLR , 7, 10 CPLR 3211(a)(4)... 1, 4, 6, 8, 10 N.Y. Public Health Law 3614-c ( Wage Parity Act )... 3 REGULATIONS: Administrative Code for the City of New York ("Living Wage Law")... 3 iii 4 of 14

5 PRELIMINARY STATEMENT The Court should deny in its entirety Defendant s motion which seeks to dismiss Plaintiffs action pursuant to CPLR 3211(a)(4), or in the alternative, to dismiss without prejudice or stay this action pursuant to CPLR 2201 and CPLR 3211(a)(4) pending resolution of Chan v. Chinese-American Planning Council Home Attendant Program, Inc., 15-cv (S.D.N.Y.). First, contrary to Defendant s assertions, there is no substantial identity between the parties that would warrant relief under CPLR 3211(a)(4) or CPLR The instant Plaintiffs are three different individuals who are neither the same nor substantially the same as the Chan plaintiffs. Second, the instant Plaintiffs are not class members in Chan and therefore, there is no substantial identity of the parties on that basis. Third, the instant Plaintiffs would be prejudiced by a dismissal or stay in this action because as they are not parties in Chan, they would lose their only means of litigating their claims and protecting their rights. Furthermore, the Chan matter is stayed pending arbitration pursuant to a Memorandum of Agreement effective December 1, 2015 ( 2015 MOA ) that added arbitration provisions to the Defendant s collective bargaining agreement with the Union. However, in the instant matter, Honorable United States District Judge Katherine B. Forrest determined that the instant Plaintiffs may not be bound by the 2015 MOA. Chu v. Chinese-American Planning Council Home Attendant Program, Inc., 1:16-cv KBF, 2016 WL at *5 (S.D.N.Y. July 11, 2016). Judge Forrest also decisively determined that the federal court lacked subject matter jurisdiction over the action. Id. at *5. The fact that the 2015 MOA does not govern relative to Plaintiffs and the lack of federal subject matter jurisdiction in this action are the law of the case which must be followed. For these reasons, the Court should deny Defendant s motion in its entirety. 1 5 of 14

6 STATEMENT OF FACTS A. Factual Background of This Case and Plaintiffs Complaint. Plaintiffs Mei Kum Chu, Sau King Chung and Qun Xiang Ling are home care aides formerly employed by Defendant to care for disabled and elderly individuals in and around New York City. (See, Plaintiffs Complaint 15, attached as Exhibit 1 to the Affirmation of S. Tito Sinha). Each Plaintiff s employment with Defendant ended by June 1, 2015 which was prior to the signing of a Memorandum of Agreement effective December 1, 2015 ( 2015 MOA ) that added arbitration provisions to the Defendant s collective bargaining agreement with the Union and prevented employees from litigating their claims as a class action. (See, 2015 MOA at p. 10, 4, attached as Exhibit 2 to the Affirmation of S. Tito Sinha). Plaintiffs typically worked 24- hour shifts, caring for their charges day and night, and often working as much as 96 consecutive hours a week. Although Plaintiffs normally worked 24-hour shifts, Defendant generally paid them for a maximum of 12 hours of work per day. Defendant paid Plaintiffs at a rate of $10.00 per hour for their weekday hours and to Plaintiff Ling and Chu $11.10 for their weekend hours, plus a per diem rate of $16.95 when they worked a 24-hour shift. (Exhibit 1, Compl. 41, 48, 55). Defendant never paid Plaintiffs time-and-a-half for their overtime hours or spread-of-hours payments even though Plaintiffs regularly worked more than forty hours per week and a spreadof-hours of more than 10 hours a day. (Exhibit 1, Compl , 49, 51, 57-58). Nor did Defendant provide Plaintiffs with proper wage statements. (Exhibit 1, Compl. 61). In response to these systematic violations, on April 12, 2016, Plaintiffs brought this action individually and on behalf of approximately 1,000 home care aides who worked during the period between April 1, 2008 through June 1, 2015 in the Supreme Court of the State of New 2 6 of 14

7 York against Defendant for failure to pay under the NYLL (1) minimum wages, (2) overtime wages, (3) spread-of-hours wages, (4) straight time wages; (5) mandatory training hours; and (6) for failure to provide a proper wage statement. In addition, since Defendant regularly failed to pay Plaintiffs for each hour they worked, Plaintiffs also asserted claims on a representative basis for violations of the NY Home Care Worker Wage Parity Act, N.Y. Public Health Law 3614-c ( Wage Parity Act ), and the Fair Wages for New Yorkers Act ( Living Wage Law ), Administrative Code for the City of New York 6-109, both of which required Defendant to pay Plaintiffs a set wage of up to $10 an hour for each hour Plaintiffs worked. Because Defendant entered into contracts with the HRA requiring it to pay Plaintiffs in accordance with the Wage Parity Act and Living Wage Law, and Defendant failed to pay Plaintiffs in accordance with those laws, Plaintiffs also asserted claims as third-party beneficiaries of those contracts. Finally, Plaintiffs also alleged on a representative basis that Defendant was unjustly enriched by its failure to pay Plaintiffs in accordance with those laws. Plaintiffs did not assert any claims pursuant to any collective bargaining agreement or pursue any claims under federal law. B. Relevant Procedural History. On and about May 13, 2016, Defendant removed this case to the United States District Court for the Southern District of New York. See E-Filed Document 2, Notice of Removal/Remand. Defendant next moved in federal court to compel arbitration under the Federal Arbitration Act based on the 2015 MOA. Subsequently, on June 1, 2016, Plaintiffs requested that Honorable United States District Judge Katherine B. Forrest stay Defendant s motion to compel during the pendency of Plaintiffs motion to remand which was filed on June 13, On July 11, 2016, Judge Forrest granted Plaintiffs motion to remand to this Court and denied Defendant s motion to compel arbitration as moot. Chu v. Chinese-American 3 7 of 14

8 Planning Council Home Attendant Program, Inc., 1:16-cv KBF, 2016 WL (S.D.N.Y. July 11, 2016). In so deciding, Judge Forrest held that Plaintiffs could not be bound by the 2015 MOA because they were not parties to the agreement. Id. at *5. been certified. While this action was brought as a class action complaint, significantly, no class has yet ARGUMENT THE COURT SHOULD DENY DEFENDANT S MOTION TO DISMISS OR STAY PLAINTIFF S COMPLAINT CPLR 3211(a)(4) permits a party to move for dismissal of a complaint where there is another action pending between the same parties for the same cause of action in a court of any state or the United States. Courts have stated that [w]here there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending. Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 A.D.3d 783, 784 (2 nd Dept. 2013) (citations omitted). The Court should deny Defendant s motion to dismiss, or in the alternative, stay this action because Chan does not involve substantially the same parties, causes of action, and remedies arising out of the same facts and circumstances. Furthermore, it is well within the discretion of the Court to deny Defendant s motion to avoid prejudice to the instant Plaintiffs, and in order to follow the law of the case. A. There is No Identity Between the Instant Plaintiffs and the Chan Plaintiffs While substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4), Syncora Guarantee Inc. v. J.P. Morgan Securities LLC, 110 A.D.3d 87, 96 (1 st Dept. 2013), substantial identity nevertheless requires at least one plaintiff and one 4 8 of 14

9 defendant is common in each action. Cellino & Barnes, P.C. v. Law Office of Christopher J. Cassar, P.C., 140 A.D.3d 1732, 1734 (4 th Dept. 2016); Proietto v. Donahue, 189 A.D.2d 807, (2 nd Dept. 1993); Morgulas v. J. Yudell Realty, Inc., 161 A.D.2d 211, 213 (1 st Dept. 1990). Substantial identity between the parties has been determined to exist in cases where the actions consisted of the same corporate entities and their respective insurance companies (Scottsdale Ins. Co., 110 A.D.3d at 784); the same plaintiff and defendants who were close corporate affiliates (Syncora Guarantee Inc., 110 A.D.3d at 96); the same plaintiff and a corporate defendant in one action and the corporation s counsel as defendant in the other action with the same underlying facts (Tadco Constr. Corp. v. Centennial Ins. Co., 2008 WL , at *8-9 (Sup. Ct. N.Y. Cnty. Oct. 7, 2008)); or the same corporate entities with the addition of two individual shareholders in one of the actions (White Light Prods., Inc. v. On the Scene Prods., Inc., 231 A.D.2d 90, (1 st Dept. 1997)). Substantial identity between the parties has been found to not exist where there is only a sole party who is common to both actions. Proietto, at 808. In this case, Plaintiffs Mei Kum Chu, Sau King Chung, and Qun Xiang Ling were all former home care aides who terminated their employment with Defendant by June 1, prior to the filing of the instant Complaint and, more significantly, the signing of the 2015 MOA that added arbitration provisions to the Defendant s collective bargaining agreement with the Union. By contrast, the Chan plaintiffs, Lai Chan, Hui Chen, and Xue Xie, are three completely different individuals who are currently employed by Defendant and were all employed at the time the 2015 MOA became effective. Because the instant Plaintiffs are completely different from the Chan plaintiffs, they cannot be found to be substantially identical. Cellino & Barnes, P.C., 140 A.D.3d at 1734; Proietto, 189 A.D.2d at of 14

10 Defendant argues that the instant Plaintiffs are substantially identical to the Chan plaintiffs because they are class members in Chan. However, the First Department has held when a class is not certified, unnamed plaintiffs are not subject to res judicata effects of judicial decisions pertaining to the class. Astil v. Kumquat Properties, LLC, 125 A.D.3d 522 (1 st Dept. 2015) (internal quotes and citation omitted). Indeed, it is well established where a class has not been certified by a federal court, there can be no class under Rule 23, see Fed.R.Civ.P. (23)(c)(1), with the result being that the unnamed class members are not part of the action.... Jones-Bartley v. McCabe, Weisberg & Conway, P.C., 59 F. Supp. 3d 617, 638 (S.D.N.Y. 2014). This principle also extends to class definition issues in New York law. City of New York v. Maul, 14 N.Y.3d 499, 510 (2010) ( New York courts have also found that [f]ederal jurisprudence is helpful in analyzing CPLR 901 issues because CPLR article 9 has much in common with Federal rule 23, the federal class action provision. ). As a result, because no class has been certified in Chan, Defendant s comparison of the proposed classes and class periods in the instant matter and in Chan is wholly inappropriate. Because no class has been (or may ever be certified) 1 in Chan, Defendant s reliance on Matter of Howard v. New York State Dept. of Social Servs., 142 A.D.2d 773, 774 (3 rd Dept. 1988) is also misplaced. In Matter of Howard, a stay pursuant to CPLR 3211(a)(4) was only issued in a proceeding commenced by a petitioner related to a prior class action because the petitioner consented to the stay in light of the fact that a class had been certified in which petitioner was a member. ( During the pendency of this appeal, the Westmiller case has been certified as a class action of which petitioner is clearly a member. ). Id. Here, no class has been certified nor are the instant Plaintiffs parties in Chan. 1 As Defendant notes in its Memorandum of Law, Judge Forrest compelled the Chan plaintiffs to adjudicate their claims in arbitration. Pursuant to the 2015 MOA, class arbitration is prohibited. Therefore, the Plaintiffs in this lawsuit may never be part of the Chan case of 14

11 Defendant is also not entitled to a stay pursuant to CPLR 2201 because a stay requires a substantial identity of parties which does not exist between the instant action and the Chan lawsuit. Chan v. Zoullas, 34 Misc.3d 1210(A), 2012 WL at *2 (Sup. Ct. N.Y. Cnty. Jan. 10, 2012). In Chan v. Zoullas ( Zoullas ), the court examined respective state and federal actions which were both brought by derivative shareholders on behalf of the same nominal corporation against the same corporate officers and directors alleging the same causes of action. Id. at *1, 2, 4. Although different plaintiffs were named in the suits, there, the court granted a stay because the resolution of the federal action may have preclusive effect in the state actions. [and] the decision in one action will determine all the questions in the other action or will, at least, reduce the issues in the other actions Id. at *3. In contrast to Zoullas, the resolution of the Chan litigation will neither have a preclusive effect, determine all questions, nor even reduce the issues in the instant matter for several reasons. In Chan, the matter is stayed while the arbitrator decides the threshold issue of whether the 2015 MOA can apply retroactively upon claims which arose prior to the effective date of the 2015 MOA effective. Chan v. Chinese-American Planning Council Home Attendant Program, Inc., 15-cv (S.D.N.Y. February 3, 2016). The Union s power to negotiate on behalf of and bind the Chan plaintiffs to an arbitration process is not contested. In the instant matter, Judge Forrest has already concluded that the Plaintiffs may not be bound by subsequently adopted amendments to a collective bargaining agreement to which they were not parties. Chu, 2016 WL at * 5. As a result, the 2015 MOA does not govern Defendant s employment relationship with the Plaintiffs and the Chan arbitration will have no preclusive effect nor determine any issues raised by the instant Plaintiffs of 14

12 In summary, because the instant Plaintiffs are three different individuals with different underlying facts from the Chan plaintiffs, they are not plaintiffs in the Chan case, and resolution of the Chan arbitration will have no preclusive effect on the instant suit, there is no substantial identity of the parties to warrant relief under CPLR 3211(a)(4). B. The Court Should Exercise its Discretion to Deny Defendant s Motion in Order to Avoid Prejudice to Plaintiffs and Follow the Law of the Case The trial court has broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action. CPLR 3211(a)(4); Cellino & Barnes, P.C., 140 A.D.3d at In considering a request for a stay while another action is pending, the court also takes into account the order in which the cases commenced, the risk of inconsistent rulings, and any prejudice that a stay may cause to the party opposing it. Zoullas, 34 Misc.3d 1210(A) at *3 (citations omitted). A factor that weighs heavily against dismissal pursuant to CPLR 3211(a)(4) is where the plaintiff finds itself without any forum in which to litigate its claim. L-3 Communications Corp. v. SafeNet, Inc., 45 A.D.3d 1, 8 (1 st Dept. 2007) (denying dismissal in order to preserve plaintiff s claims. ). Therefore, even if the Court held that this lawsuit is duplicative of Chan despite the lack of substantial identity of the parties, it should not dismiss or stay this case because either a dismissal or a stay would prejudice Plaintiffs. Because the instant Plaintiffs are not parties to the Chan suit, dismissal would prejudice them because it would deprive them of their only means of litigating their claims and protecting their rights. L-3 Communications Corp., 45 A.D.3d at 8. Also, as stated earlier, the instant Plaintiffs, Mei Kum Chu, Sau King Chung, and Qun Xiang Ling, were not employed by the Defendant at the time of the 2015 MOA and thus were not parties to the 2015 MOA. A dismissal or a stay would force Plaintiffs to be bound by an arbitration agreement to which they were never a party. Significantly, arbitration is a matter of 8 12 of 14

13 consent, not coercion. Specifically, arbitration is a matter of contract, and therefore a party cannot be required to submit to arbitration any dispute which it has not agreed so to submit. Holick v. Cellular Sales of New York LLC, 802 F.3d 391, 395 (2 nd Cir. 2015) (citing JLM Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 171 (2 nd Cir. 2004) (internal quotation marks omitted); Truck Drivers Local Union No. 807, I.B.T. v. Reg'l Imp. & Exp. Trucking Co., 944 F.2d 1037, 1042 (2 nd Cir. 1991). As a result, Judge Forrest conclusively held that the instant Plaintiffs may not be bound by the 2015 MOA. Chu, 2016 WL at *5. In her Honor s July 11, 2016 Opinion and Order remanding this case back to this Court from federal court, Judge Forrest also decisively determined that the federal court lacked subject matter jurisdiction over the action. Chu, 2016 WL at *7. Specifically, the court concluded that the Labor Management Relations Act preemption did not apply. Id. One basis for this decision is the fact that the 2015 MOA does not govern Defendant s employment relationship with the Plaintiffs because they each stopped working for Defendant prior to December 1, 2015 effective date. Id. at 5. The fact that the 2015 MOA does not govern relative to Plaintiffs and the lack of federal subject matter jurisdiction in this action are the law of the case. The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned. Martin v. City of Cohoes, 37 N.Y.2d 162, 165 (1975). The doctrine applies only to legal determinations that were necessarily resolved on the merits in the prior decision and to the same questions presented in the same case. RPG Consulting, Inc. v. Zormati, 82 A.D.3d 739, 740 (2 nd Dept. 2011) (internal quotations and citations omitted; citing cases). Accordingly, New York State Supreme Court is a 9 13 of 14

14 court of co-ordinate jurisdiction with federal district courts and must submit to the law of the case doctrine where an issue has already been judicially determined. Hess v. Wojcik-Hess, 86 A.D.3d 847, (3 rd Dept. 2011). Defendant s arguments that the instant Plaintiffs can have their claims adjudicated in federal court by submitting to arbitration provisions they never consented to violate the law of the case. The clear law of the case requires that Plaintiffs have the right to fully and fairly adjudicate their claims in New York State Supreme Court and that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned. Martin, 37 N.Y.2d at 165. Therefore, the Court should exercise its discretion to deny Defendant s motion to avoid prejudice to Plaintiffs claims and to insure that the law of the case is followed. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court deny in its entirety Defendant s motion to dismiss this action pursuant to CPLR 3211(a)(4), or in the alternative, dismiss without prejudice or stay this action pursuant to CPLR 2201 and CPLR 3211(a)(4) pending resolution of Chan. Dated: New York, New York October 14, 2016 Respectfully Submitted By: /s/ S. Tito Sinha Carmela Huang URBAN JUSTICE CENTER Michael Taubenfeld SERRINS FISHER LLP Edward Tuddenham Attorneys for Plaintiffs of 14