Teshabaeva v Family Home Care Servs. of Brooklyn & Queens, Inc.

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Teshabaeva v Family Home Care Servs. of Brooklyn & Queens, Inc. 2020 NY Slip Op 32327(U) July 16, 2020 Supreme Court, New York County Docket Number: 158949/2017 Judge: Alexander M. Tisch Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 07/16/2020 04:58 PM INDEX NO. 158949/2017 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/16/2020 l lPRE 1E COlJl{T OF TllE TATE OF \ORK COlJ TV PRE. ENT: HO'l. EW \''ORK PART LEXAi\ DER l\1. Tl ~. CH EW IA MOTIO 18EFM J11.~tice --------------------------------------------- ------------------------------------X f\1AK l lJ l\~l\1A 'fESHABAf· VA, 1\ Nf) JJAN I lUA LJENG INl)lVIDl JALI. . Y ..\ND ON Bl~ IIAI I· 0 1· All , 01'1-IER J>J ll~ON SIMILARLY SITllA11DWI10 wr:Rc FM PLOYED BY I Al\11L 'r' HOM E CARI· Sl:RVl('f S ()l 13ROOKLYN AND Q l Jl· I· <;;. I C .. INllEX NO. 158949/20 17 MOTION l)A TE 04/26/2020 M<>TION SEQ. N<>. 003 f>Ja i11t i ff. 1:- -\1\111't'110\1 [ C \RE ~I \' DEC ISION + ORDER ON MOTION R\' IC~l ~ 01 l~R()() l\.L 'r' N AND QlJl· l ~~- 11\JC. CAR[ AT l-l0 \11 . ()J()('I ~IA OF 13ROOK.l 't , 11 C.. Dcfc11c.ia11t. ---------------------------------------------------------------------------------X '1llt. f t)l lo\\ ing c-filcd docu1nents. listed b) YSCEF document number (Motion 003) 57, 58, 59, 60. 61, 62, 63. 64, 65.66.67 68.69. 70. 71. 72. 73. 74, 75. 76, 77, 78. 79,80, 81 , 82,83, 84, 85, 87, 88, 89.90, 91 , 92.93, 95, 96, 97 ''ere read on this motion to for INJUNCTION/RESTRAINING ORDER . l pon the foregoing papers, it is ORDERED that the plaintiffs' motion by order to show cause is gra11ted and the defendant's cross-motion is denied. Nan1ed plaintiffs, home health attendants, brought this putative class action seeking to reco\ er \\ages ai1d damages arising from defendant's alleged violations of state and local labor 1 la\\ s (see NYSCEF Doc. No. 25 [second amended complaint]). Specifically, the complaint asserts that defendants failed to pay minimum wages, overtime, ''spread of hours'' compensation, and that defendants breached contracts with government agencies (see id.). At all relevant times, plaintiffs were members of 1199SEIU United Healthcare Workers East (Union), which filed a class-wide grievance in January 2019 to st1bmit wage and hour claims. including those asserted here, to arbitration. Plaintiffs now move to permanently enjoin the arbitration and defendant· s cross-moves to compel arbitration. 158949/2017 TESHABAEVA, MAKTUMMA vs. FAMILY HOME CARE SERVICES OF Motion No. 003 1 of 4 Page 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 07/16/2020 04:58 PM INDEX NO. 158949/2017 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/16/2020 It is undisputed that the c111plo1111cnt ot' the named plaintiffs l"'csl1abaeva and Deng ceased in Ju11e 2012 and t\1a)· 20 14. rcsr1ecti\ cl~. prior to the executio11 c.1f a 20 15 111c111ora11da of agrcc111c11t (1v10A ). As such. tl11s C't) UJ1 is co11strained by recent case law o (' tl1e Fi1·st Department tc) hold tl1at tl1e mandatory a1·bitratio11 p1·c)visio11s i11 the MOA (vvl1ich L111dot1btcdly compel tl1e arl1itri1tit)t1 ot'tl1e statutor) clai 111 ~ i11 tl1c co111plai11t) are not l1i11<ling 011the 11a1ned plaintiffs' (see l licl1c/ ,, United Je\\ isl1 Cou11c1l <)1' tl1c l . Side. 179 ADJd 576. 577 11 st Dept 2020], citing l\.c)t1~ta.11t) 110\ ska' Cari11g Prc)fc~~I<)tl:1l~J11c..!.. 172 AD3d 486. 487 (I st f)cpt 20 19]~ see Lorentti- l lc1·1 era~ A11 ia11ce for 1-Ieal tl1. I11c .• 171 ,\ l)Jd 596. 596 [I st Dept 2() 19] ~ ~'l1u v Cl1ineseA111crica11 l)Ja1111i11g Cou11cil Jlo111c Attc11da11t Progran1, I11c.. 194 F Stipp 3d 22 1. 228 [SD NY 2()161). It i~ t111di~puted a~1~1licJl1le tl1at tl1e u11derlying 20 12 Collective Bargai11ing Agreement (CBA) is to tJ1e 11an1ed plai11tif'is. 1..11e relevant provisions from the CBA concerning arbitration arc iot1nd i11 Article XXV. e11titled ''Grievance and Arbitration Procedure'': 1. 1\ grie\ ance is defined as any dispute between the Union (on its behalf and/or on behalf of a11y E1nployee) with the Employer involving the proper application, interpretation, or con1pliance witl1 tl1e specific written provisions of the Agreement based on facts and circun1stai1ces occurring during the term of this Agreement. A grievance is subject to arbitration. 2. Grie' ances \\·ill be resolved in accordance with the following procedure: * * * If the grie\'ance is not resolved at Step 3, the Union may within ten (10) days thereafter request that the matter be submitted for final and binding arbitration under the Labor Arbitration Rules of the American Arbitration Association (NYSCEF Doc. No. 2 60). 1 Or those plaintiffs \\'hose employment simi larly ceased prior to the execution of the MOA, as this is a putative class action . ., The 2000 CBA (NYSCEF Doc. No. 80) contains substantially similar arbitration language to that in the 2012 CBA. 158949/2017 TESHABAEVA, MAKTUMMA vs. FAMILY HOME CARE SERVICES OF Motion No. 003 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 07/16/2020 04:58 PM INDEX NO. 158949/2017 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/16/2020 Again~ this Court is bound by recent First Department case law. whicl1 held that the exact sa111c language did not prohibit plaintiffs from bri11ging this type of action i11 state court (see I Iichez, 179 AD3d 576. 576-77 (I st Dept 2020]). 111 Hichez. the appellate cou11 reasoned that the arbitration provision in the CBA limited 1nandatory a1·bit1·ation to disputes ''co11cerning the interpretation or application of la specific] term of the CBA,. and that plaintiffs' stattitory claims, like those asserted in this case. tall outside of' the CBA (see id ., quoting Lo1·entti-Herrera, 173 AD3d at 596). Indeed. defe11da11t co11ccdcs the same (see NYSCEF Doc. No. 85 [defendant's n1e111ora11du111 ot' la\\' i11 oppositio11 to plai11tii1s' 1notion and i11 support of its c1·oss 1notion] [that "'tl1e 2012 CBA 's grievance a11d arbitratio11 agreement itself does not compel arbitration of Plai11tiff s statutory wage and hour claims'' is ''a point not disputed by Defendants'']). T11e Court rejects defenda11t s argument that the thresl1old issue of whether the claims are arbitrable is tor the arbitrator to decide, as that, too, has been upheld by the appellate courts as an issue for tl1e trial court (see Zachariou v Manios, 68 AD3d 539 [1st Dept 2009] [''Whether a dispute is arbitrable is generally an issue for the court to decide unless the parties clearly and uru11istakably provide otherwise'']; Konstantynovska v Caring Professionals, Inc., 2018 NY Slip Op 31475[0], 10 [Sup Ct, New York County 2018], affd Konstantynovska, 172 AD3d 486). Additionally, here, the CBA does not clearly and unambiguously delegate the question of arbitrability to an arbitrator (see Zachariou, 68 AD3d 539). Given the findings above, the Court need not address the plaintiffs remaining contentions. Accordingly, it is hereby ORDERED tl1at the motion by plaintiffs for a permanent injunction against arbitration is granted; and it is further 158949/2017 TESHABAEVA, MAKTUMMA vs. FAMILY HOME CARE SERVICES OF Motion No. 003 3 of 4 Page 3of4 [*FILED: 4] NEW YORK COUNTY CLERK 07/16/2020 04:58 PM INDEX NO. 158949/2017 NYSCEF DOC. NO. 99 RECEIVED NYSCEF: 07/16/2020 ORDERED tl1at the cross-rnotion by defendants to compel arbitration is denied. TJ1js constitutes the decision and order of the Court. 7/1 6/2020 ER M. TISCH, J.S.C. DATE CHECK ONE: CASE DISPOSED GRANTED D DENIED x x NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158949/2017 TESHABAEVA, MAKTUMMA vs. FAMILY HOME CARE SERVICES OF Motion No. 003 4 of 4 D D OTHER REFERENCE Page4of4

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