Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
OLENA LAVRENYUK, individually and on behalf of
similarly situated, Index No.: 156393/2017
Plaintiffs,
- against – (Mot. Seq. 004)
LIFE CARE SERVICES, INC.,
Defendant.
MEMORANDUM OF LAW IN OPPOSITION
VIRGINIA & AMBINDER, LLP
LaDonna M. Lusher, Esq.
Joel L. Goldenberg, Esq.
40 Broad Street, 7th Floor
New York, New York 10004
(212) 943-9080
llusher@vandallp.com
jgoldenberg@vandallp.com
Class Counsel
1 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
TABLE OF CONTENTS
Table of Authorities......................................................................................................................... ii
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 9
I. BY ACTIVELY PARTICIPATING IN THIS LITIGATION FOR OVER SIX YEARS,
DEFENDANT HAS WAIVED ITS RIGHT TO EXCLUDE ANY CLASS MEMBERS
BASED ON ARBITRATION.................................................................................................... 10
A. Defendant’s Six Year Delay In Seeking to Enforce Arbitration Supports Waiver ......... 11
B. Defendant Waived Arbitration by Actively Defending the Litigation in this Judicial
Forum..................................................................................................................................... 13
C. Plaintiffs Will Suffer Severe Prejudice If They Are Excluded From the Class At This
Late Stage of the Litigation ................................................................................................... 15
CONCLUSION ............................................................................................................................. 18
CERTIFICATION OF WORD LIMIT.......................................................................................... 19
i
2 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Table of Authorities
Cases
Advest, Inc. v. Wachtel,
253 A.D.2d 659 (1st Dept. 1998) .............................................................................................. 14
Bucci v. McDermott,
156 A.D.2d 328 (2d Dept. 1989) ................................................................................... 13, 14, 18
Carnegie v. H&R Block, Inc.,
180 Misc. 2d 67 (Sup. Ct. 1999) ............................................................................................... 19
Carollo v. United Cap. Corp.,
2022 U.S. Dist. LEXIS 188667 (N.D.N.Y. Oct. 17, 2022) ....................................................... 18
Cork v. Parker,
462 U.S. 345 (1983) .................................................................................................................. 19
Cusimano v. Schnurr,
26 NY3d 391 (2015) ........................................................................................................... 13, 14
De Sapio v. Kohlmeyer,
35 N.Y.2d 402 (1974) .................................................................................................... 13, 15, 17
Dembitzer v. Chera,
305 AD2d 531 (2nd Dept. 2003) ............................................................................................... 15
Flores v. Lower East Side Service Center, Inc.,
4 NY3d 363(2005) .................................................................................................................... 14
Flynn v. Labor Ready,
751 N.Y.S.2d 722 (Sup. Ct. 2002) ............................................................................................. 13
Forrest v. Unifund Fin. Grp., Inc.,
2007 U.S. Dist. LEXIS 17627 (S.D.N.Y. Mar. 13, 2007) ......................................................... 15
Giovanniello v. ALM Media, LLC,
726 F.3d 106 (2d Cir. 2013) ...................................................................................................... 19
Gray Holdco, Inc. v. Cassady,
654 F.3d 444 (3d Cir. 2011)........................................................................................... 15, 18, 20
Kobler v. Royal Alliance Associates, Inc.,
264 A.D.2d 675 (1st Dept. 1999) .............................................................................................. 13
Konstantynovska v. Friendly Home Care, Inc.,
2023 N.Y. Misc. LEXIS 762 (Kings Cnty. Feb. 15, 2023)............................................ 14, 20, 21
Kramer v. Hammond,
943 F.2d 176 (2d Cir. 1991) ................................................................................................ 19, 20
Landa v. Jones-Calnan,
2016 N.Y. Misc. LEXIS 8469 (Sup. Ct. Nassau Cnty., Sept. 30, 2016) ................................... 16
Lavrenyuk v. Life Care Servs.,
2021 N.Y. Misc. LEXIS 6027 (Sup. Ct. June 28, 2021) (Tisch, J.)............................................ 9
Lavrenyuk v. Life Care Servs., Inc.,
152 N.Y.S.3d 907 (1st Dept. 2021) ............................................................................................. 9
Lavrenyuk, etc. v. Life Care Servs., Inc.,
ii
3 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
168 N.Y.S.3d 716 (2022) ............................................................................................................ 9
Leadertex v. Morganton Dyeing & Finishing Corp.,
67 F.3d 20 (2d Cir. 1995) .......................................................................................................... 14
Matter of Long Island Power Auth. Hurricane Sandy Litig.,
2016 NY Slip Op 32695(U) (Sup. Ct. 2016) ............................................................................. 13
Matter of Zimmerman v. Cohen,
236 N. Y. 15 (1923) ................................................................................................................... 13
N.Y. C. R. Co. v. Erie R. Co.,
213 N.Y.S.2d 15 (Sup. Ct. 1961) ............................................................................................... 15
Niagara Falls v. Rudolph,
91 A.D.2d 817 (4th Dept. 1982) ................................................................................................ 17
Nino v. Jewelry Exch., Inc.,
609 F.3d 191 (3d Cir. 2010) ...................................................................................................... 16
Oconner v. Agilant Sols., Inc.,
444 F. Supp. 3d 593 (S.D.N.Y. March 12, 2020) ...................................................................... 21
Subbota v. Five Star Home Health Care Agency, Inc.,
Index No. 504094/2019 (NY Sup. Kings Cty.) ............................................................. 15, 16, 20
Tech. in P’ship v. Rudin,
894 F. Supp. 2d 274 (S.D.N.Y. 2012) .................................................................................. 14, 20
Statutes
New York Public Health Law § 3614-c .......................................................................................... 5
NYC Admin. Code § 6-109 ............................................................................................................ 5
NYCRR 142-2.1 et. seq. ................................................................................................................. 5
NYLL 190, et. seq. .......................................................................................................................... 4
NYLL 650, et. seq. .......................................................................................................................... 4
NYLL 663 ....................................................................................................................................... 5
iii
4 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Named Plaintiff Olena Lavrenyuk and the certified class (collectively “Plaintiffs”) submit
this opposition to Defendant Life Care Services, Inc.’s (“Defendant” or “Life Care”) last-minute
attempt to compel thousands of class members to arbitration, despite that they have been litigating
their unpaid wage claims before this Court for more than six years. Defendant’s belated
application, filed on the eve of trial, must be denied because Defendant sat on its hands during this
entire litigation, and waived its right “to exclude class members” from this action based on
arbitration agreements they purportedly signed back in 2017. For years, Defendant has
strategically litigated this action in this Court and never moved to compel arbitration. Indeed,
Defendant filed an answer containing ten affirmative defenses (none of which references
arbitration), participated in extensive pre-class certification discovery and post-class certification
discovery, attended countless court conferences, entered into numerous so-ordered stipulations,
engaged in protracted motion practice, attended private mediation and settlement conferences, and
filed appeals with the First Department and Court of Appeals. Now that discovery is nearly
complete, and the parties are readying themselves for trial, Defendant files the instant application
seeking to disingenuously delay resolution of this action, and to nullify a certified class that was
affirmed by the First Department. Defendant’s gamesmanship cannot be condoned as Plaintiffs
will suffer severe prejudice if they are forced to arbitrate their claims at this late stage. For these
reasons, and those set forth below, Defendant’s motion must be denied in its entirety.
BACKGROUND
Named Plaintiff Olena Lavrenyuk commenced this action on July 17, 2017, on behalf of
herself and other similarly situated home health aides and/or personal care aides (“HHAs”),
seeking recovery of unpaid wages and benefits for work that they performed for Defendant.
Plaintiffs allege claims under New York Labor Law (“NYLL”) § 190 et seq., § 650, § 651 and §
1
5 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
663, 12 New York Codes, Rules, and Regulations (hereinafter referred to as “NYCRR”) §§ 142-
2.1, 142-2.2, 142-2.4, 142-2.10, New York Public Health Law § 3614-c (the “Wage Parity Act”)
and Title 6, Section 6-109 of the New York City Administrative Code (hereinafter referred to as
“NYC Admin. Code § 6-109” or the “Living Wage Law”). [Ex. A.] 1 Specifically, Plaintiffs allege
that Defendant engaged in systemic violations of underpaying them, including Defendant’s failure
to properly compensate Plaintiffs for all hours worked, failure to keep proper records that tracked
Plaintiffs’ hours worked and whether Plaintiffs received the requisite sleep and meal breaks, failure
to provide adequate sleeping accommodations, and failure to pay Plaintiffs wages in compliance
with NYLL, the Wage Parity Act, and the Living Wage Law, amongst other systemic wage
payment violations. Id.
On August 10, 2017, Defendant responded to Plaintiffs’ Complaint by filing its answer.
[Ex. B.] Defendant’s answer included ten affirmative defenses, none of which makes any reference
to arbitration or class action waivers. [Id.]
On October 13, 2017, Plaintiffs filed a motion seeking to extend their time to move for
class certification while the parties engaged in pre-class certification discovery. [NYSCEF Doc.
Nos. 4-13.] Defendant opposed the application, and cross-moved to dismiss Plaintiffs’ claims,
arguing that Plaintiffs did not move for class certification within the sixty-day time period set forth
in CPLR § 902. [NYSCEF Doc. Nos. 18-21.] Defendant made no mention of arbitration or any
class action waivers in its opposition or cross-motion. [Id.] On January 24, 2018, this Court
granted Plaintiffs’ motion and denied Defendant’s cross-motion. [NYSCEF Doc. No. 26.]
1
All exhibits are referenced herein are annexed to the December 29, 2023 Affirmation of LaDonna M. Lusher, Esq.
2
6 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Pre-class certification discovery
A Preliminary Conference was held on February 15, 2018, where the parties entered into a
pre-class certification discovery schedule. [See, Preliminary Conference Order (“PCO”), Ex. C.]
Pursuant to the PCO, Plaintiffs served Defendant with their First Set of Pre-Class Certification
Discovery Demands and Interrogatories (collectively the “Pre-Class Discovery Demands”) on
February 27, 2018. [Ex. D.] Plaintiffs specifically requested, inter alia:
Document Request No. 3: All documents and any
communications relating to any and all terms and conditions of
Plaintiffs’ employment with Defendant (e.g., hours worked,
compensation, benefits, job duties, training, qualifications, job
requirements, expectations, evaluations, etc.), including but not
limited to any contracts and agreements, manuals, handbooks,
training materials, statement of Plaintiffs’ job duties and
responsibilities, and evaluations, including evaluations conducted
during site visits.
Document Request No. 5: All documents in Defendant’s
possession signed by Named Plaintiff and the Putative Class
Members, including but not limited to documents which refer or
relate to any waiver and/or release of any rights or claims against
Defendant.
Document Request No. 32: Any documents and any
communications relating to Plaintiffs’ employment with Defendant,
not otherwise requested.
[Id.]
On June 4, 2018, Defendant responded to Plaintiffs Pre-Class Certification Demands by
producing approximately 226 pages of documents pertaining only to Named Plaintiff Lavrenyuk.
[Ex. E.] Defendant did not produce any records for the class, and did not produce or reference any
arbitration agreements or class action waivers. Id. Instead, Defendant recited the same boilerplate
objection to each of Plaintiffs’ requests:
Defendant objects to this demand on the grounds that it seeks
information beyond the scope of CPLR Sections 3101 and 3118
3
7 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
inasmuch as it purports to require Defendant to produce evidentiary
information in response to a Demand for Disclosure. Moreover,
Plaintiff is not entitled to the information requested because a class
action in this matter is precluded and/or barred by res judicata,
collateral estoppel and/or any other related legal principles because
a class determination has already been made and certified based on
the same causes of actions asserted by Plaintiff, in the United States
District Court for the Southern District of New York, in the case
Rodriguez De Carrasco v. Life Care Services, Inc. et al, Docket No.
17-cv-05617 (KBF), 2017 WL 6403521 (S.D.N.Y.2017). Finally,
notwithstanding the foregoing and without waiving same, any
further pursuit of a class action in this matter should be stayed during
the pendency of the case Moreno v. Future Care Health Services,
Inc. et al, which is currently before the New York State Court of
Appeals, contains the same legal causes of actions and will
determine whether Home Health Aides such as Plaintiff are entitled
to payment for all 24 hours of a 24 hour live in shift if they receive
8 hours of sleep, with 5 hours uninterrupted and 3 hours of meal
breaks and whether such a claim can be sustained as a class action,
which is at issue herein. Further, Defendant objects to this request
on the basis that it prematurely seeks information regarding a
potential class of employees as opposed to that of Plaintiff prior to
the Court’s determination on Plaintiff’s motion for class and
collective certification. Subject to the General Objections and
Reservations, and without waiver of same, Defendant will produce
all responsive, relevant and non-privileged records within its
custody or control as they relate to Plaintiff Lavrenyuk.
[Ex. E.]
On June 16, 2018, Plaintiffs moved to compel pre-class certification discovery. [NYSCEF
Doc. Nos. 31-40.] Defendant opposed Plaintiffs’ motion, and again cross-moved to dismiss
Plaintiffs’ claims. [NYSCEF Doc. Nos. 42-56.] Defendant’s opposition and cross-motion relied
on the same objections it set forth in its responses to Plaintiffs’ Pre-Class Certification Demands
and made no mention of arbitration or class action waivers. [Id.]
After meeting-and-conferring, the parties resolved the motions and agreed to a sampling
protocol by which Defendant was to produce records for a representative sampling of the class.
[See NYSCEF Doc. Nos. 67-68, Ex. F, January 2019 Emails; and, Ex. G, January 2019 Sampling
4
8 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Letter.] The sampling protocol requested that Defendant produce, inter alia, all “personnel files”
and “employment policies” pertaining to Plaintiffs. [Id.]
On February 8, 2019, Defendant produced a sampling of payroll records but did not
produce any of the other requested records. [Ex. H, February 2019 Emails.] On September 19,
2019, Defendant made another incomplete production, prompting Plaintiffs to send Defendant an
email on January 28, 2020 outlining the deficiencies. [Ex. I, January 28, 2020 Emails.]
On April 9, 2020, Defendant made another incomplete production and on June 8, 2020,
Plaintiffs sent Defendant a deficiency letter, again outlining the deficiencies in its response. [Ex.
J, June 8, 2020 Deficiency Letter.] On June 19, 2020, Defendant followed up with another
supplemental production. [Ex. K, June 19, 2020 Cover Letter.] Despite producing records on no
fewer than four separate occasions, i.e., June 4, 2018, February 8, 2019, April 9, 2020, and June
19, 2020, and filing two cross-motions to dismiss Plaintiffs’ claims, Defendant never produced, or
even mentioned, any arbitration agreements or class action waivers across two years of pre-class
certification discovery.
On September 21, 2020, Plaintiffs moved for class certification. [NYSCEF Doc. Nos. 83-
99.] Defendant opposed Plaintiffs’ motion, and filed a cross-motion seeking to strike an affidavit
submitted by Plaintiffs and for sanctions. [NYSCEF Doc. Nos.103-131.] It was here that
Defendant mentioned arbitration for the first time, more than three years into the litigation, and
after actively engaging in motion practice, entering into countless court orders and conducting
discovery. Importantly, Defendant never moved to compel arbitration. [Id.] Instead, Defendant
merely mentioned arbitration in a single paragraph when opposing numerosity, and submitted four
redacted arbitration agreements out of a class of nearly 2,000 members. [Id. at Doc. No. 104, p.16;
5
9 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Doc. No. 117, Ex. L.] Defendant did not submit any arbitration agreement signed by the Named
Plaintiff or any of the class members that submitted affidavits in support of Plaintiffs’ motion. [Id.]
On June 28, 2021, this Court granted Plaintiffs’ motion and denied Defendant’s cross-
motion. This Court certified a class consisting of all individuals employed by Defendant as non-
residential home health aides and/or personal care assistants in New York between July 17, 2011
and the present. [NYSCEF Doc. No. 170; Lavrenyuk v. Life Care Servs., 2021 N.Y. Misc. LEXIS
6027 (Sup. Ct. June 28, 2021) (Tisch, J.).] This Court further directed that notice of this class
action be effectuated to all class members. [Id.] Accordingly, on or about August 30, 2021, notice
was mailed to approximately 1,961 class members. Defendant did not move to stay distribution of
the class notice, nor did Defendant move to compel arbitration.
Defendant appealed this Court’s class certification decision and order to the Appellate
Division, First Department. [NYSCEF Doc. No. 172.] Defendant did not raise arbitration in its
appeal. [See generally, NYSCEF App. Div. Dkt. Index No. 2021-02414.] On October 26, 2021,
the First Department affirmed this Court’s decision. Lavrenyuk v. Life Care Servs., Inc., 152
N.Y.S.3d 907 (1st Dept. 2021). 2 Thereafter, Defendant petitioned the Court of Appeals for leave
to appeal, which the high court subsequently denied. Lavrenyuk, etc. v. Life Care Servs., Inc., 168
N.Y.S.3d 716 (2022).
Post-class certification discovery
After class certification was granted, the parties entered into a post-class certification
discovery schedule, and on July 22, 2021, Plaintiffs served Defendant with its first set of Post-
class Certification Discovery Demands and Interrogatories (collectively “Plaintiffs’ Post-
2
Defendant also filed a motion for a stay pending the determination of its appeal which was denied. [NYSCEF App.
Div. Dkt. 2021-02414, Doc. No. 16.]
6
10 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Certification Discovery Demands”). [June 14, 2021 Stipulation, NYSCEF Doc. No. 173.]
Plaintiffs requested that Defendant produce, inter alia,:
Document Request No. 2. All employee personnel files.
Document Request No. 12. All documents provided to Class
Members during the Relevant Period regarding Defendant’s policies
and/or procedures for making complaints and/or grievances to
Defendant.
Document Request No. 14. All Documents that refer or relate to
any of the Defendant’s compensation policies, practices and
procedures with respect to Class Members.
Document Request No. 40. All documents which refer or relate to
any waiver and/or release of any rights or claims against the
Defendant completed in full or in part by Class Members.
[Ex. L.]
On September 3, 2021, Defendant produced limited responses to Plaintiffs’ Post
Certification Discovery Demands and sought to meet-and-confer regarding Plaintiffs’ demands.
[Ex. M, September 3, 2021 Letter.] Defendant did not raise arbitration as an objection to any of
Plaintiffs’ requests. Instead, Defendant objected that the requests were “overly broad insofar as it
calls for the production of documents and/or the recitation of facts that do not relate to, concern,
or are likely to relate to or concern the matters alleged in the pleadings,” “vague and/or
ambiguous,” “unduly burdensome and oppressive,” and seeking “information which is not relevant
to the subject matter of this litigation nor reasonably calculated to lead to the discovery of
admissible evidence.” [Ex. M, Defendant’s Post Certification Discovery Responses.] Defendant
then stated that “no documents will be produced.” [Id.]
On November 9, 2021, Plaintiffs sent Defendant a deficiency letter. [Ex. N.] The parties
met and conferred on November 16, 2021. [Ex. O, January 21, 2022 Emails.]
On January 21, 2022, Defendant made a supplemental production consisting of class-wide
electronic payroll records for the years 2014-2021. [Id.] The parties met and conferred again on
7
11 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
May 25 and 31, 2022, to discuss discovery costs, amongst other items, and ultimately agreed that
Defendant could produce a sampling for post-certification discovery to make things more cost-
efficient and manageable. The parties further agreed to schedule a mediation. [Ex. P, May to
October 2022 Emails.]
On July 1, 2022, Defendant made a supplemental production containing contracts and
PDF-versions of the previously produced class-wide electronic payroll records. [Id.] On September
6, 2022, Plaintiffs followed up on the status of the discovery production and Defendant requested
an extension to October 21, 2022, to which Plaintiffs consented. [Id., see also Ex. Q, October 2022
Emails.]
On November 1, 2022, the parties attended mediation, but were unable to come to a
resolution. On January 9, 2023, Plaintiffs’ counsel emailed Defendant’s counsel to inquire about
the status of discovery. [Ex. R, January 2023 Emails.] Plaintiffs followed up by email again on
January 27, 2023. [Id.] Defendant responded that it preferred to focus its resources on the parties’
ongoing settlement discussions instead of discovery. [Id.]
Over the next ten months, the parties continued to meet and confer regarding outstanding
post-class certification discovery, and entered into several stipulations. [NYSCEF Doc. Nos. 185,
187.] Defendant also attended another settlement conference on August 28, 2023, but were still
unable to reach a resolution. Throughout this entire process Defendant never once mentioned
arbitration or class action waivers. Instead, Defendant fully engaged in the discovery process by
producing class-wide records, agreeing to a sampling protocol for other records, meeting and
conferring, entering into countless stipulations and participating in mediation and settlement
conferences. It was only after the parties had two failed attempts to reach a settlement, and as
8
12 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
discovery was set to close, that Defendant belatedly claimed some class members had purportedly
signed arbitration agreements. [See generally, Def. Memo. at 1, 3.]
On November 7, 2023, Defendant produced an additional 11,000 pages of records,
including arbitration agreements purportedly signed by class members as far back as 2017, when
this litigation was commenced. Defendant immediately followed its production by filing this
motion to exclude all class members who had signed the agreements from participating in this
action. [Ex. S.]
It is clear from the procedural history that Defendant deliberately chose to actively litigate
this case for over six years and utilize this forum by: (i) participating in multiple court conferences;
(ii) responding to Plaintiffs’ discovery requests and producing thousands of pages of class-wide
records; (iii) engaging in motion practice, including appeals; and (iv) attending private mediation
and multiple settlement conferences. All the while, Defendant never moved to compel arbitration
of Plaintiffs’ claims nor did Defendant produce the arbitration agreements purportedly signed by
class members until filing the instant application.
Defendant has offered no excuse or explanation as to why it sat on its hands and waited
over six years to seek to exclude these class members, despite that they have already been notified
of their inclusion in this class action, and that Plaintiffs made repeated requests for documents
containing a purported waiver of any of Plaintiffs’ claims. Defendant made a calculated decision
not to enforce the agreements, but to actively litigate Plaintiffs’ claims in this judicial forum.
Accordingly, Defendant waived any right to “exclude class members” and/or compel them to
arbitrate their claims, and its motion must be denied.
ARGUMENT
9
13 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
I. BY ACTIVELY PARTICIPATING IN THIS LITIGATION FOR OVER SIX
YEARS, DEFENDANT HAS WAIVED ITS RIGHT TO EXCLUDE ANY CLASS
MEMBERS BASED ON ARBITRATION
Defendant’s belated motion to exclude class members on the eve of trial must be denied
because Defendant has waived its right to raise arbitration after Defendant has availed itself of this
judicial forum for over six years. Indeed, it is well establish that, “‘[l]ike contract rights generally,
a right to arbitration may be modified, waived or abandoned . . .’ a litigant may not compel
arbitration when its use of the courts is ‘clearly inconsistent with its later claim that the parties
were obligated to settle their differences by arbitration.’” Matter of Long Island Power Auth.
Hurricane Sandy Litig., 2016 NY Slip Op 32695(U), ¶¶ 6-7 (Sup. Ct. 2016) (quoting Cusimano v.
Schnurr, 26 NY3d 391, 400 (2015)); see also Flynn v. Labor Ready, 751 N.Y.S.2d 722, 724 (Sup.
Ct. 2002) (“a defendant's right to compel arbitration and the concomitant right to stay the action
does not remain absolute, but may be waived by, for example, interposing a counterclaim, giving
notice of trial, or obtaining an order for the taking of a deposition”) (citing Matter of Zimmerman
supra; Kobler v. Royal Alliance Associates, Inc., 264 A.D.2d 675 (1st Dept. 1999); Bucci v.
McDermott, 156 A.D.2d 328 (2d Dept. 1989)). The Court of Appeals has also observed that “a
defendant's right to compel arbitration, and the concomitant right to stay an action, does not remain
absolute….” De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 405 (1974) (denying motion to compel
arbitration because “the defendant's participation in the lawsuit manifests an affirmative
acceptance of the judicial forum.”) (citing Matter of Zimmerman v. Cohen, 236 N. Y. 15 (1923)).
To determine whether a party has waived arbitration, courts consider three factors: (1) the
amount of time between the commencement of the action and the request for arbitration; (2) the
amount of litigation thus far; and (3) prejudice to the opposing party. Cusimano v. Schnurr, 120
A.D.3d 142, 149 (1st Dept. 2014) (citing Leadertex v. Morganton Dyeing & Finishing Corp., 67
10
14 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
F.3d 20 (2d Cir. 1995); Advest, Inc. v. Wachtel, 253 A.D.2d 659, 660-61, (1st Dept. 1998)). In the
instant action, all three factors undoubtedly demonstrate waiver.
A. Defendant’s Six Year Delay In Seeking to Enforce Arbitration Supports Waiver
Although Plaintiffs commenced this action on July 17, 2017, Defendant did not file the
instant motion to exclude class members on the basis of arbitration agreements until November 7,
2023 - more than six years later. [See generally, Ex. T, Docket, NYSCEF Doc. Nos. 191-199.]
Defendant provides no valid justification for this substantial and unreasonable delay. Instead, the
record demonstrates that Defendant actively participated in this litigation by filing multiple
motions, conducting substantial pre- and post-class certification discovery, attending countless
court conferences, entering into numerous court orders and stipulations, attending mediation and
settlement conferences, and producing thousands of pages of class-wide records.
"Similar conduct has been found to constitute a waiver of arbitrable remedies.”
Konstantynovska v. Friendly Home Care, Inc., 2023 N.Y. Misc. LEXIS 762, *12-14 (Kings Cnty.
Feb. 15, 2023) (court found defendant-employer “waived its right to enforce any arbitration
agreement by waiting to raise the issue for over four years while conducting discovery and
litigating the case in this judicial forum.”). See also Flores v. Lower East Side Service Center, Inc.,
4 NY3d 363, 371-372 (2005) (waiver of arbitration found where defendant participated in
litigation for more than 16 months through discovery and filing a note of issue); Bucci v.
McDermott, 156 A.D.2d 328, 328 (2d Dept. 1989) (finding waiver of arbitration where defendant
moved to compel “[m]ore than a year after the litigation had commenced); Tech. in P’ship v. Rudin,
894 F. Supp. 2d 274, 279 (S.D.N.Y. 2012) (holding arbitration was waived when “Defendants
delayed for over fifteen months from the date the Complaint was filed before filing the instant
motion to compel arbitration.”); Forrest v. Unifund Fin. Grp., Inc., 2007 U.S. Dist. LEXIS 17627
11
15 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
at *6 (S.D.N.Y. Mar. 13, 2007) (denying motion to compel arbitration made eighteen months after
the action was commenced where “[d]efendants had the opportunity to raise the arbitration issue
in response to the initial complaint but elected to proceed with litigation…”); N.Y. C. R. Co. v. Erie
R. Co., 213 N.Y.S.2d 15, 22 (Sup. Ct. 1961) (“The Arbitration Law was enacted to facilitate the
settlement of disagreements, to expedite their disposition and to avoid the delay inherent in
litigation. But the Arbitration Law contemplates prompt action and too long a delay in seeking
appropriate relief may be easily construed as an indication that this claim is waived.”); Gray
Holdco, Inc. v. Cassady, 654 F.3d 444, 455 (3d Cir. 2011) (finding waiver of arbitration and holding
that a “ten-month delay is substantially longer than the delays we have encountered in cases where
we have not found waiver of the right to arbitrate on a delay basis.”).
In a similar case brought by home health workers seeking unpaid wages, Judge Loren
Baily-Schiffman found the defendant-employer waived its right to compel arbitration because it
waited over two years from the date of its answer to file a motion seeking such relief. [Ex. U,
October 4, 2019 Decision and Order in Subbota v. Five Star Home Health Care Agency, Inc., Index
No. 504094/2019 (NY Sup. Kings Cty.).] As recognized by that court, “[t]he law is clearly
established that a Defendant who has participated in litigation is barred from later claiming that
the parties were obligated to settle their differences by arbitration.” Id. (citing Dembitzer v. Chera,
305 AD2d 531, 532 (2nd Dept. 2003) (citing De Sapio, 35 N.Y.2d at 406); see also See Gray
Holdco, Inc., supra at 457-58 (“even though the party seeking arbitration included mandatory
arbitration as one of the ten affirmative defenses in its answer to the plaintiff's complaint, the third
Hoxworth factor weighed in favor of finding a waiver of the right to arbitrate because the
significance of the notice diminished the longer the defendant delayed in moving to compel
arbitration.”) (citing Nino v. Jewelry Exch., Inc., 609 F.3d 191, 211 (3d Cir. 2010)).
12
16 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Here, Defendant’s delay of more than six years is even longer and more egregious than the
cases cited above. Accordingly, it is clear that Defendant waived any right to arbitration and its
motion must be denied.
B. Defendant Waived Arbitration by Actively Defending the Litigation in this
Judicial Forum
Defendant has strategically defended the litigation in this judicial forum and availed itself
of the judicial process for over six years, demonstrating that it had no intent to arbitrate Plaintiffs’
claims. Indeed, Defendant appeared in this action on August 10, 2017 by filing its Answer – not
by making a motion to compel arbitration. [Ex. B.] Defendant’s answer contained ten affirmative
defenses – not one of which stated that Plaintiffs’ claims are subject to an arbitration agreement or
barred by a class-action waiver. [Id.] Defendant’s failure to include arbitration as an affirmative
defense can constitute waiver in and of itself. [See Ex. U, Subbota, supra., Index. No. 50494/2019
(court found defendant-employer’s failure to include arbitration as an affirmative defense,
combined with its participation in the action for more than two years and motion to change venue,
constituted a permanent waiver to any right defendant may have had to resolve the matter in
arbitration).] See also Landa v. Jones-Calnan, 2016 N.Y. Misc. LEXIS 8469, *9 (Sup. Ct. Nassau
Cnty., Sept. 30, 2016) (court denied motion to compel arbitration where defendant cited to an
agreement in his affirmative defenses and counterclaims which contained an arbitration provision,
but did not explicitly mention arbitration in his answer, and the parties continued litigating after
the answer was filed).
Following Defendant’s initial appearance, Defendant appeared at no fewer than fifteen
conferences, entering into countless stipulations and discovery schedules, without ever arguing
that Plaintiffs’ claims are subject to arbitration. [Ex. V, Appearance Detail; NYSCEF Doc Nos. 82,
101, 163, 167, 173, 176, 179, 183, and 185.] Defendant also engaged in protracted motion practice,
13
17 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
opposing Plaintiffs motion to extend their time to move for class certification, and cross-moving
to dismiss Plaintiffs’ claims [NYSCEF Doc. Nos. 18-21]; opposing Plaintiffs’ motion to compel
pre-class certification discovery, and cross-moving to dismiss [NYSCEF Doc. Nos. 42-56, 68];
opposing Plaintiffs’ motion for class certification, and cross-moving to strike and for sanctions.
[NYSCEF Doc. Nos. 103-131.]. Yet, Defendant never moved to compel arbitration.
Defendant also engaged in significant and ongoing discovery throughout the six years this
action has been pending. [See generally, Lusher Aff.] Plaintiffs served multiple document and
interrogatory demands, to which Defendant responded on numerous occasions and produced
thousands of pages of class-wide discovery. Notably, while Defendant stated multiple objections
to Plaintiffs’ discovery demands, it never once asserted that Plaintiffs’ claims are subject to
arbitration, or produced any arbitration agreements in response. [See Exs. E, M.] Even after this
Court granted class certification, Defendant waited two-and-a-half years to move to exclude class
members on the basis of arbitration agreements, and continued to engage in discovery, including
providing Plaintiffs with a class list of approximately 2,000 class members who worked for
Defendant from July 17, 2011 through June 28, 2021. [Lusher Aff. ¶ 13.]
Clearly Defendant’s active participation in this action, its extensive interactions with this
Court and the Appellate Courts, its deliberate motion practice, and the amount of discovery that
has taken place over the past six years strongly weigh in favor of waiver. See Niagara Falls v.
Rudolph, 91 A.D.2d 817 (4th Dept. 1982) (party was properly determined to have waived its right
to arbitration by the affirmative use of the judicial process that included filing a cross-claim, its
participation in pretrial conferences, examinations, and discovery); De Sapio, 35 N.Y.2d at 406
(denying arbitration and finding waiver because of party’s “utilization of judicial discovery
procedures” which was “an affirmative acceptance of the judicial forum.”); Gray Holdco, Inc. v.
14
18 of 23
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017
NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023
Cassady, 654 F.3d 444, 453-54 (3d Cir. 2011) (“a party may not use arbitration to manipulate the
legal process and in that process waste scarce judicial resources.”) (citations omitted); Bucci v.
McDermott, 156 A.D.2d 328, 328-29 (2d Dept. 1989) (finding defendant had waived its right to
enforce arbitration by participating in the litigation process because it “inter alia, interposed an
answer to the original complaint containing 11 affirmative defenses and counterclaims, served
Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK OLENA LAVRENYUK, individually and on behalf of similarly situated, Index No.: 156393/2017 Plaintiffs, - against – (Mot. Seq. 004) LIFE CARE SERVICES, INC., Defendant. MEMORANDUM OF LAW IN OPPOSITION VIRGINIA & AMBINDER, LLP LaDonna M. Lusher, Esq. Joel L. Goldenberg, Esq. 40 Broad Street, 7th Floor New York, New York 10004 (212) 943-9080 llusher@vandallp.com jgoldenberg@vandallp.com Class Counsel 1 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 TABLE OF CONTENTS Table of Authorities......................................................................................................................... ii BACKGROUND ............................................................................................................................ 1 ARGUMENT .................................................................................................................................. 9 I. BY ACTIVELY PARTICIPATING IN THIS LITIGATION FOR OVER SIX YEARS, DEFENDANT HAS WAIVED ITS RIGHT TO EXCLUDE ANY CLASS MEMBERS BASED ON ARBITRATION.................................................................................................... 10 A. Defendant’s Six Year Delay In Seeking to Enforce Arbitration Supports Waiver ......... 11 B. Defendant Waived Arbitration by Actively Defending the Litigation in this Judicial Forum..................................................................................................................................... 13 C. Plaintiffs Will Suffer Severe Prejudice If They Are Excluded From the Class At This Late Stage of the Litigation ................................................................................................... 15 CONCLUSION ............................................................................................................................. 18 CERTIFICATION OF WORD LIMIT.......................................................................................... 19 i 2 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Table of Authorities Cases Advest, Inc. v. Wachtel, 253 A.D.2d 659 (1st Dept. 1998) .............................................................................................. 14 Bucci v. McDermott, 156 A.D.2d 328 (2d Dept. 1989) ................................................................................... 13, 14, 18 Carnegie v. H&R Block, Inc., 180 Misc. 2d 67 (Sup. Ct. 1999) ............................................................................................... 19 Carollo v. United Cap. Corp., 2022 U.S. Dist. LEXIS 188667 (N.D.N.Y. Oct. 17, 2022) ....................................................... 18 Cork v. Parker, 462 U.S. 345 (1983) .................................................................................................................. 19 Cusimano v. Schnurr, 26 NY3d 391 (2015) ........................................................................................................... 13, 14 De Sapio v. Kohlmeyer, 35 N.Y.2d 402 (1974) .................................................................................................... 13, 15, 17 Dembitzer v. Chera, 305 AD2d 531 (2nd Dept. 2003) ............................................................................................... 15 Flores v. Lower East Side Service Center, Inc., 4 NY3d 363(2005) .................................................................................................................... 14 Flynn v. Labor Ready, 751 N.Y.S.2d 722 (Sup. Ct. 2002) ............................................................................................. 13 Forrest v. Unifund Fin. Grp., Inc., 2007 U.S. Dist. LEXIS 17627 (S.D.N.Y. Mar. 13, 2007) ......................................................... 15 Giovanniello v. ALM Media, LLC, 726 F.3d 106 (2d Cir. 2013) ...................................................................................................... 19 Gray Holdco, Inc. v. Cassady, 654 F.3d 444 (3d Cir. 2011)........................................................................................... 15, 18, 20 Kobler v. Royal Alliance Associates, Inc., 264 A.D.2d 675 (1st Dept. 1999) .............................................................................................. 13 Konstantynovska v. Friendly Home Care, Inc., 2023 N.Y. Misc. LEXIS 762 (Kings Cnty. Feb. 15, 2023)............................................ 14, 20, 21 Kramer v. Hammond, 943 F.2d 176 (2d Cir. 1991) ................................................................................................ 19, 20 Landa v. Jones-Calnan, 2016 N.Y. Misc. LEXIS 8469 (Sup. Ct. Nassau Cnty., Sept. 30, 2016) ................................... 16 Lavrenyuk v. Life Care Servs., 2021 N.Y. Misc. LEXIS 6027 (Sup. Ct. June 28, 2021) (Tisch, J.)............................................ 9 Lavrenyuk v. Life Care Servs., Inc., 152 N.Y.S.3d 907 (1st Dept. 2021) ............................................................................................. 9 Lavrenyuk, etc. v. Life Care Servs., Inc., ii 3 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 168 N.Y.S.3d 716 (2022) ............................................................................................................ 9 Leadertex v. Morganton Dyeing & Finishing Corp., 67 F.3d 20 (2d Cir. 1995) .......................................................................................................... 14 Matter of Long Island Power Auth. Hurricane Sandy Litig., 2016 NY Slip Op 32695(U) (Sup. Ct. 2016) ............................................................................. 13 Matter of Zimmerman v. Cohen, 236 N. Y. 15 (1923) ................................................................................................................... 13 N.Y. C. R. Co. v. Erie R. Co., 213 N.Y.S.2d 15 (Sup. Ct. 1961) ............................................................................................... 15 Niagara Falls v. Rudolph, 91 A.D.2d 817 (4th Dept. 1982) ................................................................................................ 17 Nino v. Jewelry Exch., Inc., 609 F.3d 191 (3d Cir. 2010) ...................................................................................................... 16 Oconner v. Agilant Sols., Inc., 444 F. Supp. 3d 593 (S.D.N.Y. March 12, 2020) ...................................................................... 21 Subbota v. Five Star Home Health Care Agency, Inc., Index No. 504094/2019 (NY Sup. Kings Cty.) ............................................................. 15, 16, 20 Tech. in P’ship v. Rudin, 894 F. Supp. 2d 274 (S.D.N.Y. 2012) .................................................................................. 14, 20 Statutes New York Public Health Law § 3614-c .......................................................................................... 5 NYC Admin. Code § 6-109 ............................................................................................................ 5 NYCRR 142-2.1 et. seq. ................................................................................................................. 5 NYLL 190, et. seq. .......................................................................................................................... 4 NYLL 650, et. seq. .......................................................................................................................... 4 NYLL 663 ....................................................................................................................................... 5 iii 4 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Named Plaintiff Olena Lavrenyuk and the certified class (collectively “Plaintiffs”) submit this opposition to Defendant Life Care Services, Inc.’s (“Defendant” or “Life Care”) last-minute attempt to compel thousands of class members to arbitration, despite that they have been litigating their unpaid wage claims before this Court for more than six years. Defendant’s belated application, filed on the eve of trial, must be denied because Defendant sat on its hands during this entire litigation, and waived its right “to exclude class members” from this action based on arbitration agreements they purportedly signed back in 2017. For years, Defendant has strategically litigated this action in this Court and never moved to compel arbitration. Indeed, Defendant filed an answer containing ten affirmative defenses (none of which references arbitration), participated in extensive pre-class certification discovery and post-class certification discovery, attended countless court conferences, entered into numerous so-ordered stipulations, engaged in protracted motion practice, attended private mediation and settlement conferences, and filed appeals with the First Department and Court of Appeals. Now that discovery is nearly complete, and the parties are readying themselves for trial, Defendant files the instant application seeking to disingenuously delay resolution of this action, and to nullify a certified class that was affirmed by the First Department. Defendant’s gamesmanship cannot be condoned as Plaintiffs will suffer severe prejudice if they are forced to arbitrate their claims at this late stage. For these reasons, and those set forth below, Defendant’s motion must be denied in its entirety. BACKGROUND Named Plaintiff Olena Lavrenyuk commenced this action on July 17, 2017, on behalf of herself and other similarly situated home health aides and/or personal care aides (“HHAs”), seeking recovery of unpaid wages and benefits for work that they performed for Defendant. Plaintiffs allege claims under New York Labor Law (“NYLL”) § 190 et seq., § 650, § 651 and § 1 5 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 663, 12 New York Codes, Rules, and Regulations (hereinafter referred to as “NYCRR”) §§ 142- 2.1, 142-2.2, 142-2.4, 142-2.10, New York Public Health Law § 3614-c (the “Wage Parity Act”) and Title 6, Section 6-109 of the New York City Administrative Code (hereinafter referred to as “NYC Admin. Code § 6-109” or the “Living Wage Law”). [Ex. A.] 1 Specifically, Plaintiffs allege that Defendant engaged in systemic violations of underpaying them, including Defendant’s failure to properly compensate Plaintiffs for all hours worked, failure to keep proper records that tracked Plaintiffs’ hours worked and whether Plaintiffs received the requisite sleep and meal breaks, failure to provide adequate sleeping accommodations, and failure to pay Plaintiffs wages in compliance with NYLL, the Wage Parity Act, and the Living Wage Law, amongst other systemic wage payment violations. Id. On August 10, 2017, Defendant responded to Plaintiffs’ Complaint by filing its answer. [Ex. B.] Defendant’s answer included ten affirmative defenses, none of which makes any reference to arbitration or class action waivers. [Id.] On October 13, 2017, Plaintiffs filed a motion seeking to extend their time to move for class certification while the parties engaged in pre-class certification discovery. [NYSCEF Doc. Nos. 4-13.] Defendant opposed the application, and cross-moved to dismiss Plaintiffs’ claims, arguing that Plaintiffs did not move for class certification within the sixty-day time period set forth in CPLR § 902. [NYSCEF Doc. Nos. 18-21.] Defendant made no mention of arbitration or any class action waivers in its opposition or cross-motion. [Id.] On January 24, 2018, this Court granted Plaintiffs’ motion and denied Defendant’s cross-motion. [NYSCEF Doc. No. 26.] 1 All exhibits are referenced herein are annexed to the December 29, 2023 Affirmation of LaDonna M. Lusher, Esq. 2 6 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Pre-class certification discovery A Preliminary Conference was held on February 15, 2018, where the parties entered into a pre-class certification discovery schedule. [See, Preliminary Conference Order (“PCO”), Ex. C.] Pursuant to the PCO, Plaintiffs served Defendant with their First Set of Pre-Class Certification Discovery Demands and Interrogatories (collectively the “Pre-Class Discovery Demands”) on February 27, 2018. [Ex. D.] Plaintiffs specifically requested, inter alia: Document Request No. 3: All documents and any communications relating to any and all terms and conditions of Plaintiffs’ employment with Defendant (e.g., hours worked, compensation, benefits, job duties, training, qualifications, job requirements, expectations, evaluations, etc.), including but not limited to any contracts and agreements, manuals, handbooks, training materials, statement of Plaintiffs’ job duties and responsibilities, and evaluations, including evaluations conducted during site visits. Document Request No. 5: All documents in Defendant’s possession signed by Named Plaintiff and the Putative Class Members, including but not limited to documents which refer or relate to any waiver and/or release of any rights or claims against Defendant. Document Request No. 32: Any documents and any communications relating to Plaintiffs’ employment with Defendant, not otherwise requested. [Id.] On June 4, 2018, Defendant responded to Plaintiffs Pre-Class Certification Demands by producing approximately 226 pages of documents pertaining only to Named Plaintiff Lavrenyuk. [Ex. E.] Defendant did not produce any records for the class, and did not produce or reference any arbitration agreements or class action waivers. Id. Instead, Defendant recited the same boilerplate objection to each of Plaintiffs’ requests: Defendant objects to this demand on the grounds that it seeks information beyond the scope of CPLR Sections 3101 and 3118 3 7 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 inasmuch as it purports to require Defendant to produce evidentiary information in response to a Demand for Disclosure. Moreover, Plaintiff is not entitled to the information requested because a class action in this matter is precluded and/or barred by res judicata, collateral estoppel and/or any other related legal principles because a class determination has already been made and certified based on the same causes of actions asserted by Plaintiff, in the United States District Court for the Southern District of New York, in the case Rodriguez De Carrasco v. Life Care Services, Inc. et al, Docket No. 17-cv-05617 (KBF), 2017 WL 6403521 (S.D.N.Y.2017). Finally, notwithstanding the foregoing and without waiving same, any further pursuit of a class action in this matter should be stayed during the pendency of the case Moreno v. Future Care Health Services, Inc. et al, which is currently before the New York State Court of Appeals, contains the same legal causes of actions and will determine whether Home Health Aides such as Plaintiff are entitled to payment for all 24 hours of a 24 hour live in shift if they receive 8 hours of sleep, with 5 hours uninterrupted and 3 hours of meal breaks and whether such a claim can be sustained as a class action, which is at issue herein. Further, Defendant objects to this request on the basis that it prematurely seeks information regarding a potential class of employees as opposed to that of Plaintiff prior to the Court’s determination on Plaintiff’s motion for class and collective certification. Subject to the General Objections and Reservations, and without waiver of same, Defendant will produce all responsive, relevant and non-privileged records within its custody or control as they relate to Plaintiff Lavrenyuk. [Ex. E.] On June 16, 2018, Plaintiffs moved to compel pre-class certification discovery. [NYSCEF Doc. Nos. 31-40.] Defendant opposed Plaintiffs’ motion, and again cross-moved to dismiss Plaintiffs’ claims. [NYSCEF Doc. Nos. 42-56.] Defendant’s opposition and cross-motion relied on the same objections it set forth in its responses to Plaintiffs’ Pre-Class Certification Demands and made no mention of arbitration or class action waivers. [Id.] After meeting-and-conferring, the parties resolved the motions and agreed to a sampling protocol by which Defendant was to produce records for a representative sampling of the class. [See NYSCEF Doc. Nos. 67-68, Ex. F, January 2019 Emails; and, Ex. G, January 2019 Sampling 4 8 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Letter.] The sampling protocol requested that Defendant produce, inter alia, all “personnel files” and “employment policies” pertaining to Plaintiffs. [Id.] On February 8, 2019, Defendant produced a sampling of payroll records but did not produce any of the other requested records. [Ex. H, February 2019 Emails.] On September 19, 2019, Defendant made another incomplete production, prompting Plaintiffs to send Defendant an email on January 28, 2020 outlining the deficiencies. [Ex. I, January 28, 2020 Emails.] On April 9, 2020, Defendant made another incomplete production and on June 8, 2020, Plaintiffs sent Defendant a deficiency letter, again outlining the deficiencies in its response. [Ex. J, June 8, 2020 Deficiency Letter.] On June 19, 2020, Defendant followed up with another supplemental production. [Ex. K, June 19, 2020 Cover Letter.] Despite producing records on no fewer than four separate occasions, i.e., June 4, 2018, February 8, 2019, April 9, 2020, and June 19, 2020, and filing two cross-motions to dismiss Plaintiffs’ claims, Defendant never produced, or even mentioned, any arbitration agreements or class action waivers across two years of pre-class certification discovery. On September 21, 2020, Plaintiffs moved for class certification. [NYSCEF Doc. Nos. 83- 99.] Defendant opposed Plaintiffs’ motion, and filed a cross-motion seeking to strike an affidavit submitted by Plaintiffs and for sanctions. [NYSCEF Doc. Nos.103-131.] It was here that Defendant mentioned arbitration for the first time, more than three years into the litigation, and after actively engaging in motion practice, entering into countless court orders and conducting discovery. Importantly, Defendant never moved to compel arbitration. [Id.] Instead, Defendant merely mentioned arbitration in a single paragraph when opposing numerosity, and submitted four redacted arbitration agreements out of a class of nearly 2,000 members. [Id. at Doc. No. 104, p.16; 5 9 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Doc. No. 117, Ex. L.] Defendant did not submit any arbitration agreement signed by the Named Plaintiff or any of the class members that submitted affidavits in support of Plaintiffs’ motion. [Id.] On June 28, 2021, this Court granted Plaintiffs’ motion and denied Defendant’s cross- motion. This Court certified a class consisting of all individuals employed by Defendant as non- residential home health aides and/or personal care assistants in New York between July 17, 2011 and the present. [NYSCEF Doc. No. 170; Lavrenyuk v. Life Care Servs., 2021 N.Y. Misc. LEXIS 6027 (Sup. Ct. June 28, 2021) (Tisch, J.).] This Court further directed that notice of this class action be effectuated to all class members. [Id.] Accordingly, on or about August 30, 2021, notice was mailed to approximately 1,961 class members. Defendant did not move to stay distribution of the class notice, nor did Defendant move to compel arbitration. Defendant appealed this Court’s class certification decision and order to the Appellate Division, First Department. [NYSCEF Doc. No. 172.] Defendant did not raise arbitration in its appeal. [See generally, NYSCEF App. Div. Dkt. Index No. 2021-02414.] On October 26, 2021, the First Department affirmed this Court’s decision. Lavrenyuk v. Life Care Servs., Inc., 152 N.Y.S.3d 907 (1st Dept. 2021). 2 Thereafter, Defendant petitioned the Court of Appeals for leave to appeal, which the high court subsequently denied. Lavrenyuk, etc. v. Life Care Servs., Inc., 168 N.Y.S.3d 716 (2022). Post-class certification discovery After class certification was granted, the parties entered into a post-class certification discovery schedule, and on July 22, 2021, Plaintiffs served Defendant with its first set of Post- class Certification Discovery Demands and Interrogatories (collectively “Plaintiffs’ Post- 2 Defendant also filed a motion for a stay pending the determination of its appeal which was denied. [NYSCEF App. Div. Dkt. 2021-02414, Doc. No. 16.] 6 10 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Certification Discovery Demands”). [June 14, 2021 Stipulation, NYSCEF Doc. No. 173.] Plaintiffs requested that Defendant produce, inter alia,: Document Request No. 2. All employee personnel files. Document Request No. 12. All documents provided to Class Members during the Relevant Period regarding Defendant’s policies and/or procedures for making complaints and/or grievances to Defendant. Document Request No. 14. All Documents that refer or relate to any of the Defendant’s compensation policies, practices and procedures with respect to Class Members. Document Request No. 40. All documents which refer or relate to any waiver and/or release of any rights or claims against the Defendant completed in full or in part by Class Members. [Ex. L.] On September 3, 2021, Defendant produced limited responses to Plaintiffs’ Post Certification Discovery Demands and sought to meet-and-confer regarding Plaintiffs’ demands. [Ex. M, September 3, 2021 Letter.] Defendant did not raise arbitration as an objection to any of Plaintiffs’ requests. Instead, Defendant objected that the requests were “overly broad insofar as it calls for the production of documents and/or the recitation of facts that do not relate to, concern, or are likely to relate to or concern the matters alleged in the pleadings,” “vague and/or ambiguous,” “unduly burdensome and oppressive,” and seeking “information which is not relevant to the subject matter of this litigation nor reasonably calculated to lead to the discovery of admissible evidence.” [Ex. M, Defendant’s Post Certification Discovery Responses.] Defendant then stated that “no documents will be produced.” [Id.] On November 9, 2021, Plaintiffs sent Defendant a deficiency letter. [Ex. N.] The parties met and conferred on November 16, 2021. [Ex. O, January 21, 2022 Emails.] On January 21, 2022, Defendant made a supplemental production consisting of class-wide electronic payroll records for the years 2014-2021. [Id.] The parties met and conferred again on 7 11 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 May 25 and 31, 2022, to discuss discovery costs, amongst other items, and ultimately agreed that Defendant could produce a sampling for post-certification discovery to make things more cost- efficient and manageable. The parties further agreed to schedule a mediation. [Ex. P, May to October 2022 Emails.] On July 1, 2022, Defendant made a supplemental production containing contracts and PDF-versions of the previously produced class-wide electronic payroll records. [Id.] On September 6, 2022, Plaintiffs followed up on the status of the discovery production and Defendant requested an extension to October 21, 2022, to which Plaintiffs consented. [Id., see also Ex. Q, October 2022 Emails.] On November 1, 2022, the parties attended mediation, but were unable to come to a resolution. On January 9, 2023, Plaintiffs’ counsel emailed Defendant’s counsel to inquire about the status of discovery. [Ex. R, January 2023 Emails.] Plaintiffs followed up by email again on January 27, 2023. [Id.] Defendant responded that it preferred to focus its resources on the parties’ ongoing settlement discussions instead of discovery. [Id.] Over the next ten months, the parties continued to meet and confer regarding outstanding post-class certification discovery, and entered into several stipulations. [NYSCEF Doc. Nos. 185, 187.] Defendant also attended another settlement conference on August 28, 2023, but were still unable to reach a resolution. Throughout this entire process Defendant never once mentioned arbitration or class action waivers. Instead, Defendant fully engaged in the discovery process by producing class-wide records, agreeing to a sampling protocol for other records, meeting and conferring, entering into countless stipulations and participating in mediation and settlement conferences. It was only after the parties had two failed attempts to reach a settlement, and as 8 12 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 discovery was set to close, that Defendant belatedly claimed some class members had purportedly signed arbitration agreements. [See generally, Def. Memo. at 1, 3.] On November 7, 2023, Defendant produced an additional 11,000 pages of records, including arbitration agreements purportedly signed by class members as far back as 2017, when this litigation was commenced. Defendant immediately followed its production by filing this motion to exclude all class members who had signed the agreements from participating in this action. [Ex. S.] It is clear from the procedural history that Defendant deliberately chose to actively litigate this case for over six years and utilize this forum by: (i) participating in multiple court conferences; (ii) responding to Plaintiffs’ discovery requests and producing thousands of pages of class-wide records; (iii) engaging in motion practice, including appeals; and (iv) attending private mediation and multiple settlement conferences. All the while, Defendant never moved to compel arbitration of Plaintiffs’ claims nor did Defendant produce the arbitration agreements purportedly signed by class members until filing the instant application. Defendant has offered no excuse or explanation as to why it sat on its hands and waited over six years to seek to exclude these class members, despite that they have already been notified of their inclusion in this class action, and that Plaintiffs made repeated requests for documents containing a purported waiver of any of Plaintiffs’ claims. Defendant made a calculated decision not to enforce the agreements, but to actively litigate Plaintiffs’ claims in this judicial forum. Accordingly, Defendant waived any right to “exclude class members” and/or compel them to arbitrate their claims, and its motion must be denied. ARGUMENT 9 13 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 I. BY ACTIVELY PARTICIPATING IN THIS LITIGATION FOR OVER SIX YEARS, DEFENDANT HAS WAIVED ITS RIGHT TO EXCLUDE ANY CLASS MEMBERS BASED ON ARBITRATION Defendant’s belated motion to exclude class members on the eve of trial must be denied because Defendant has waived its right to raise arbitration after Defendant has availed itself of this judicial forum for over six years. Indeed, it is well establish that, “‘[l]ike contract rights generally, a right to arbitration may be modified, waived or abandoned . . .’ a litigant may not compel arbitration when its use of the courts is ‘clearly inconsistent with its later claim that the parties were obligated to settle their differences by arbitration.’” Matter of Long Island Power Auth. Hurricane Sandy Litig., 2016 NY Slip Op 32695(U), ¶¶ 6-7 (Sup. Ct. 2016) (quoting Cusimano v. Schnurr, 26 NY3d 391, 400 (2015)); see also Flynn v. Labor Ready, 751 N.Y.S.2d 722, 724 (Sup. Ct. 2002) (“a defendant's right to compel arbitration and the concomitant right to stay the action does not remain absolute, but may be waived by, for example, interposing a counterclaim, giving notice of trial, or obtaining an order for the taking of a deposition”) (citing Matter of Zimmerman supra; Kobler v. Royal Alliance Associates, Inc., 264 A.D.2d 675 (1st Dept. 1999); Bucci v. McDermott, 156 A.D.2d 328 (2d Dept. 1989)). The Court of Appeals has also observed that “a defendant's right to compel arbitration, and the concomitant right to stay an action, does not remain absolute….” De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 405 (1974) (denying motion to compel arbitration because “the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum.”) (citing Matter of Zimmerman v. Cohen, 236 N. Y. 15 (1923)). To determine whether a party has waived arbitration, courts consider three factors: (1) the amount of time between the commencement of the action and the request for arbitration; (2) the amount of litigation thus far; and (3) prejudice to the opposing party. Cusimano v. Schnurr, 120 A.D.3d 142, 149 (1st Dept. 2014) (citing Leadertex v. Morganton Dyeing & Finishing Corp., 67 10 14 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 F.3d 20 (2d Cir. 1995); Advest, Inc. v. Wachtel, 253 A.D.2d 659, 660-61, (1st Dept. 1998)). In the instant action, all three factors undoubtedly demonstrate waiver. A. Defendant’s Six Year Delay In Seeking to Enforce Arbitration Supports Waiver Although Plaintiffs commenced this action on July 17, 2017, Defendant did not file the instant motion to exclude class members on the basis of arbitration agreements until November 7, 2023 - more than six years later. [See generally, Ex. T, Docket, NYSCEF Doc. Nos. 191-199.] Defendant provides no valid justification for this substantial and unreasonable delay. Instead, the record demonstrates that Defendant actively participated in this litigation by filing multiple motions, conducting substantial pre- and post-class certification discovery, attending countless court conferences, entering into numerous court orders and stipulations, attending mediation and settlement conferences, and producing thousands of pages of class-wide records. "Similar conduct has been found to constitute a waiver of arbitrable remedies.” Konstantynovska v. Friendly Home Care, Inc., 2023 N.Y. Misc. LEXIS 762, *12-14 (Kings Cnty. Feb. 15, 2023) (court found defendant-employer “waived its right to enforce any arbitration agreement by waiting to raise the issue for over four years while conducting discovery and litigating the case in this judicial forum.”). See also Flores v. Lower East Side Service Center, Inc., 4 NY3d 363, 371-372 (2005) (waiver of arbitration found where defendant participated in litigation for more than 16 months through discovery and filing a note of issue); Bucci v. McDermott, 156 A.D.2d 328, 328 (2d Dept. 1989) (finding waiver of arbitration where defendant moved to compel “[m]ore than a year after the litigation had commenced); Tech. in P’ship v. Rudin, 894 F. Supp. 2d 274, 279 (S.D.N.Y. 2012) (holding arbitration was waived when “Defendants delayed for over fifteen months from the date the Complaint was filed before filing the instant motion to compel arbitration.”); Forrest v. Unifund Fin. Grp., Inc., 2007 U.S. Dist. LEXIS 17627 11 15 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 at *6 (S.D.N.Y. Mar. 13, 2007) (denying motion to compel arbitration made eighteen months after the action was commenced where “[d]efendants had the opportunity to raise the arbitration issue in response to the initial complaint but elected to proceed with litigation…”); N.Y. C. R. Co. v. Erie R. Co., 213 N.Y.S.2d 15, 22 (Sup. Ct. 1961) (“The Arbitration Law was enacted to facilitate the settlement of disagreements, to expedite their disposition and to avoid the delay inherent in litigation. But the Arbitration Law contemplates prompt action and too long a delay in seeking appropriate relief may be easily construed as an indication that this claim is waived.”); Gray Holdco, Inc. v. Cassady, 654 F.3d 444, 455 (3d Cir. 2011) (finding waiver of arbitration and holding that a “ten-month delay is substantially longer than the delays we have encountered in cases where we have not found waiver of the right to arbitrate on a delay basis.”). In a similar case brought by home health workers seeking unpaid wages, Judge Loren Baily-Schiffman found the defendant-employer waived its right to compel arbitration because it waited over two years from the date of its answer to file a motion seeking such relief. [Ex. U, October 4, 2019 Decision and Order in Subbota v. Five Star Home Health Care Agency, Inc., Index No. 504094/2019 (NY Sup. Kings Cty.).] As recognized by that court, “[t]he law is clearly established that a Defendant who has participated in litigation is barred from later claiming that the parties were obligated to settle their differences by arbitration.” Id. (citing Dembitzer v. Chera, 305 AD2d 531, 532 (2nd Dept. 2003) (citing De Sapio, 35 N.Y.2d at 406); see also See Gray Holdco, Inc., supra at 457-58 (“even though the party seeking arbitration included mandatory arbitration as one of the ten affirmative defenses in its answer to the plaintiff's complaint, the third Hoxworth factor weighed in favor of finding a waiver of the right to arbitrate because the significance of the notice diminished the longer the defendant delayed in moving to compel arbitration.”) (citing Nino v. Jewelry Exch., Inc., 609 F.3d 191, 211 (3d Cir. 2010)). 12 16 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Here, Defendant’s delay of more than six years is even longer and more egregious than the cases cited above. Accordingly, it is clear that Defendant waived any right to arbitration and its motion must be denied. B. Defendant Waived Arbitration by Actively Defending the Litigation in this Judicial Forum Defendant has strategically defended the litigation in this judicial forum and availed itself of the judicial process for over six years, demonstrating that it had no intent to arbitrate Plaintiffs’ claims. Indeed, Defendant appeared in this action on August 10, 2017 by filing its Answer – not by making a motion to compel arbitration. [Ex. B.] Defendant’s answer contained ten affirmative defenses – not one of which stated that Plaintiffs’ claims are subject to an arbitration agreement or barred by a class-action waiver. [Id.] Defendant’s failure to include arbitration as an affirmative defense can constitute waiver in and of itself. [See Ex. U, Subbota, supra., Index. No. 50494/2019 (court found defendant-employer’s failure to include arbitration as an affirmative defense, combined with its participation in the action for more than two years and motion to change venue, constituted a permanent waiver to any right defendant may have had to resolve the matter in arbitration).] See also Landa v. Jones-Calnan, 2016 N.Y. Misc. LEXIS 8469, *9 (Sup. Ct. Nassau Cnty., Sept. 30, 2016) (court denied motion to compel arbitration where defendant cited to an agreement in his affirmative defenses and counterclaims which contained an arbitration provision, but did not explicitly mention arbitration in his answer, and the parties continued litigating after the answer was filed). Following Defendant’s initial appearance, Defendant appeared at no fewer than fifteen conferences, entering into countless stipulations and discovery schedules, without ever arguing that Plaintiffs’ claims are subject to arbitration. [Ex. V, Appearance Detail; NYSCEF Doc Nos. 82, 101, 163, 167, 173, 176, 179, 183, and 185.] Defendant also engaged in protracted motion practice, 13 17 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 opposing Plaintiffs motion to extend their time to move for class certification, and cross-moving to dismiss Plaintiffs’ claims [NYSCEF Doc. Nos. 18-21]; opposing Plaintiffs’ motion to compel pre-class certification discovery, and cross-moving to dismiss [NYSCEF Doc. Nos. 42-56, 68]; opposing Plaintiffs’ motion for class certification, and cross-moving to strike and for sanctions. [NYSCEF Doc. Nos. 103-131.]. Yet, Defendant never moved to compel arbitration. Defendant also engaged in significant and ongoing discovery throughout the six years this action has been pending. [See generally, Lusher Aff.] Plaintiffs served multiple document and interrogatory demands, to which Defendant responded on numerous occasions and produced thousands of pages of class-wide discovery. Notably, while Defendant stated multiple objections to Plaintiffs’ discovery demands, it never once asserted that Plaintiffs’ claims are subject to arbitration, or produced any arbitration agreements in response. [See Exs. E, M.] Even after this Court granted class certification, Defendant waited two-and-a-half years to move to exclude class members on the basis of arbitration agreements, and continued to engage in discovery, including providing Plaintiffs with a class list of approximately 2,000 class members who worked for Defendant from July 17, 2011 through June 28, 2021. [Lusher Aff. ¶ 13.] Clearly Defendant’s active participation in this action, its extensive interactions with this Court and the Appellate Courts, its deliberate motion practice, and the amount of discovery that has taken place over the past six years strongly weigh in favor of waiver. See Niagara Falls v. Rudolph, 91 A.D.2d 817 (4th Dept. 1982) (party was properly determined to have waived its right to arbitration by the affirmative use of the judicial process that included filing a cross-claim, its participation in pretrial conferences, examinations, and discovery); De Sapio, 35 N.Y.2d at 406 (denying arbitration and finding waiver because of party’s “utilization of judicial discovery procedures” which was “an affirmative acceptance of the judicial forum.”); Gray Holdco, Inc. v. 14 18 of 23 FILED: NEW YORK COUNTY CLERK 12/28/2023 11:23 PM INDEX NO. 156393/2017 NYSCEF DOC. NO. 225 RECEIVED NYSCEF: 12/28/2023 Cassady, 654 F.3d 444, 453-54 (3d Cir. 2011) (“a party may not use arbitration to manipulate the legal process and in that process waste scarce judicial resources.”) (citations omitted); Bucci v. McDermott, 156 A.D.2d 328, 328-29 (2d Dept. 1989) (finding defendant had waived its right to enforce arbitration by participating in the litigation process because it “inter alia, interposed an answer to the original complaint containing 11 affirmative defenses and counterclaims, served