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FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/08/2020
SUPREME COURT STATE OF NEW YORK
COUNTY OF QUEENS
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EDEN TAKHALOV, on behalf of themselves and
others similarly situated,
NOTICE OF APPEAL
Plaintiffs,
- against -
UNION TURNPIKE CAFÉ, INC.; IGOR
ISACHAROV; BEN ISACHAROV; or any other
related entities or individuals.
Defendant(s).
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SIRS:
PLEASE TAKE NOTICE, that the Defendant’s, UNION TURNPIKE CAFÉ, INC. IGOR
ISACHAROV; BEN ISACHAROV by and through their attorneys, The Crawford Law firm, PC, hereby
appeals to the Appellate Division of the Supreme Court of the State of New York, in and for the Second
Department, from each and every part of the Order filed on April 30, 2020,which was entered in the Office
of the Clerk of the Court, Queens County, on May 6, 2020. (See copy of Order with Notice of Entry efiled
on April 30, 2020 annexed hereto as exhibit A).
Dated: Floral Park, New York
June 5, 2020
Yours, etc.
/s/ Mark A. Crawford, Esq.
_________________________
MARK A. CRAWFORD ESQ.
THE CRAWFORD LAW FIRM, P.C.
Attorneys for Defendant(s)
244-16 Jericho Turnpike
Floral Park, NY 11001
Tel: (516) 492-3147
Fax: (516)-750-0111
TO:
LEEDS BROWN LAW, PC
Attorney for Plaintiff
EDEN TAKHALOV
One Old Country Road, Suite 347
Carle Place, NY 11514
(516) 873-9550
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Supreme Gourt of tig State of New yorlt
Appellate Binision: Second -lubicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil
[a])
Case Title:Set forth the title
of thecase as itappears on the stemmews. notice of petitionor orderto For Court of Original Instance
show cause by which the matter was oris tobe commenced. or as amended.
EDEN TAKHALOV, on behalf of themselves and
others similarly situated,
Date Notice of Appeal Filed
- against -
UNION TURNPlKE CAFÉ, INC.; IGOR ISACHAROV; BEN ISACHAROV; or any other
related entities or individuals. For Appellate Division
O Civil Action O CPLR article78 Proceeding Appeal O Transferred Proceeding
O CPLR article75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article78
O Executive Law § 298
[ ] ActionCommenced under CPLR 214-g O Habeas Corpus Proceeding
CPLR Article78
O Eminent Domain CPLR 5704 Review
O Labor Law 220 or 220-b
O Law § 36
Public Officers
O Tax
Real Property Law § 1278
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation M Torts
(other than foreclosure)
InformationalStatement - Civil
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Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or
judgment by the filingof this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
O Amended Decree O Determination E Order O Resettled Order
O Amended Judgement O Finding O Order & Judgment O Ruling
O Amended Order O Interlocutory Decree O Partial Decree O Other (specify):
O Decision O Interlocutory Judgment O Resettled Decree
O Decree O Judgment O Resettled Judgment
Court: Supreme Court 8 County: Queens 5
Dated: 04/30/2020 Entered: 05/06/20
Judge (name in full):Hon.Robert I. Caloras Index No.:700815/2017
Stage: O Interlocutory E Final O Post-Final Trial: O Yes E No IfYes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pending in the court? O Yes S No
IfYes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there isany related action or proceeding now in any court of this or any other
jurisdiction, and ifso, the status of the case:
Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed:
Statute authorizing comrhencement of proceeding in the Appellate Division:
Court: Choose Court county: Choose Countv
Judge (name in full): Order of Transfer Date:
Court: Choose Court County: Choose County
Judge (name in full): Dated:
Description: Ifan appeal, briefly describe the paper appealed from. Ifthe appeal isfrom an order, specify the relief
requested and whether the motion was granted or denied. Ifan original proceeding commenced in thiscourt or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. Ifan application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
The court erroneously granted the Plaintiff's motion for Summary Judgment on the claims for wage and
hour violation and the retaliation claim and ordering an inquest on the hostile work place claims.
InformationalStatement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceedirig, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific reliefsought on appeal.
That Vacatur is sought on each and every part of the DecisionlOrder filed and recorded April 30, 2020
and entered in Supreme Court on May 6, 2020, as the same was arbitrary and capricious. The grounds
to be advanced are as follows: That granting the motion for Summary Judgment in favor of the Plaintiff
on all issues is erronous and substantially prejudices the Defendants.
Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthis form isto be filed for an
appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus in thiscourt, ifany. If this
form isto be filed for a proceeding commenced in this court, fillin only the party's name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
1 EDEN TAKHALOV Plaintiff 8 Respondent 8
2 UNION TURNPIKE CAFÉ, INC. Defendant B Appe!!ant 8
3 IGOR ISACHAROV Defendant 8 Appellant 8
4 BEN ISACHAROV Defendant 8 Appellant 8
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
Informational Statement - Civil
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Instructions: Fillinthe names of the attorneys or firms for the respective parties. Ifthis form is tobe filedwith the
notice of petition or order to show cause by which a special proceeding is tobe commenced inthe Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
Se"
himself, the box marked "Pro must be checked and the appropriate information for that litigantmust be supplied
in the spaces provided.
Attorney/Firm Name:LEEDS BROWN LAW, P.C.
Address: One Old Country Road, Suite 347
City: Carle Place State: NY Zip: 11514 Telephone No: 516-873-9550
E-mail Address: MTompkins@LeedsBrownLaw.com
Attorney Type: Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above): 1
Attorney/Firm Name: The Crawford Law Firm, PC
Address: 244-16 Jericho Turnpike
City: FloralPark State: NY Zip:11001 Telephone No: 516-492-3147
E-mail Address: info@crawfordlawpractice.com
Attorney Type: Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above): 2
] Attorney/Firm Name: The Crawford Law Firm, PC
Address: 244-16 Jericho Turnpike
City: FloralPark State: NY Zip: 11001 Telephone No: 516-492-3147
E-mail Address: info@cravvÃórdiawpractice.com
Attorney Type: M Retained O Assigned O Goverñrñéñt O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above): 3
Attorney/Firm Name: The Crawford LAw Firm,PC
Address: 244-16 Jericho Turnpike
City: FloralPark State: NY Zip: 11001 Telephone No: 516-492-3147
E-mail Address: info@crawfordiawpractice.com
Attorney Type: Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above): 4
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: O Retained Assigned O Government O Pro Se O Pro Hac Vice
Party or Parties Represented (setforth party number(s) from table above):
InformationalStatement - Civil
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
EDEN TAKHALOV, on behalf of themselves and others
similarly situated '
Index No.: 700815/2017
Plaintiffs,
NOTICE OF ENTRY
- against -
UNION TURNPIKE CAFÉ, INC.; IGOR ISACHAROV;
BEN ISACHAROV; or any other related entities or
individuals,
Defendants.
PLEASE TAKE NOTICE that the within is a true copy of a signed Short Form Order by
the Hon. Robert I.Caloras, Justice of the Supreme Court, State ofNew York, dated April 30, 2020,
and entered on March 4, 2020 by the Clerk of the Court.
Dated: May 6, 2020
Carle Place, New York
/S/
Michael A. Tompkins, Esq.
LEEDS BROWN LAw, P.C.
One Old Country Road, Suite 347
Carle Place, New York 11514
Attorneys for Plaintiff
Cc: All Counsel on Record (via NYSCEF)
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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
PRESENT: HON. ROBERT L CALORAS PART 36
Justice
X
EDEN TAKHALOV, on behalf of themselves and
others similarly situated, Index No. 700815/17
Plaintiff, Motion Date: 3/12/20
-against- Seq. No. 8
UNION TURNPIKE CAFÉ, INC.;
IGOR ISACHAROV; BEN ISACHAROV;
or any other related entities or individuals,
Defendants.
X
The following papers numbered E60-E68, E71-E99 read on this motion by Plaintiff for an
order for the following: (1) granting Plaintiff's summary judgment pursuant to CPLR § 3212
for all claims asserted in the complaint, (2) for damages as detailed and calculated in
Plaintiff's claims for wage and hour violations, (3) for an inquest as to the damages under
Plaintiff's Hostile Work Environment claim, Plaintiff's Retaliation claim, reasonable
attorneys'
fees, and costs under Labor Law and its implementing regulations.
PAPERS
NUMBERED
Notice of Motion-Affirmation-Exhibits-Memo of Law................. E60-E68
Affirmation in Opposition-Affidavits-Exhibits-Memo of Law... E71-E96
Reply Affirmation-Exhibit-Memo of Law........................... E97-E99
Upon the foregoing papers, itis ordered that the motion by the Plaintiff Defendants is
granted for the following reasons:
Plaintiff commenced this action by filinga Summons and Complaint on January 18,
Defendants'
2017 based on work she performed at restaurant commonly known as the Union
Turnpike Café, asserting claims for failure to pay minimum wage compensations, failure to
pay overtime compensations, illegal retention of gratuities, failure to pay wages, failure to
provide Wage Theft Notices, hostile work environment, sexual harassment, and retaliation.
Defendants'
In an order, February 22, 2019, this Court granted Plaintiff's motion to strike
Answer or for an order of preclusion, without opposition, wherein itdetermined the
following:
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In a decision, dated July 13, 2018, Hon. Diccia
T. Pineda-Kirwan granted defendant counsel's motion
to be relieved as counsel, and granted a 60 day stay for
defendant to retain new counsel. Over 60 days have
transpired since that order, accordingly, the stay is
lifted.Accordingly, itis
ORDERED, that the clerk is directed to lift the
stay and restore this matter; and itis further
ORDERED, that defendants shall provide
plaintiff the following documents within 30 days: all
plaintiffs'
documents and information relating to
employment with defendants including all payroll,
time, tip and wage notice records as well as personnel
files for allworkers, or defendant shall be precluded
from presenting any documents not provided at the time
of trial;and itis further
ORDERED, that depositions of defendant Igor
Isacharov, defendant Ben Isacharov, and a
representative of defendant corporation Union Turnpike
Café, Inc. shall be held on or before June 3, 3019; and
itis further
ORDERED, that the deadline to move for class
certification is extended to July 18, 2019 (45 days after
the completion of the depositions), and itis further
ORDERED, that plaintiff shall filea note of
issue on or before July 19, 2019.
This order was served upon Defendants by regular mail on March 6, 2019 (see
Affidavit of Service E-filed under E-57). Thereafter, on July 19, 2019, Plaintiff filed a Note
of Issue.
Plaintiff now moves for summary judgment. Plaintiff has submitted, among other
things, the following: Summons and Complaint; Plaintiff's affidavit; order, dated February
22, 2019; Plaintiff's Combined Discovery Demands; and a memo of law. Based upon these
documents, Plaintiff argues she is entitled to damages in the amount of $83,982.09 for wage
and hour violations, $3,400.00 in retaliation, and damages from the hostile workplace and
attorney's fees, costs and expenses to be determined at an Inquest.
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In her affidavit, Plaintiff stated she worked for Turnpike Café as a waiter and a server
from approximately 2015 through March 2016. During that time, she typically worked five
or six days per week on for shifts of approximately eight hours each. While working for
Defendants, Plaintiff claims she was not paid the minimum wage and did not receive all the
gratuities owed to her. Plaintiff claims she was typically paid approximately 50% of her tips
and estimates she was missing between $45 to $124 in tips per night. Plaintiff claims Ben
Isacharov (hereinafter "Ben") (the owner and manager) would regularly steal her tips.
Plaintiff claims she worked between 40 and 48 hours during a typical week and did not
receive overtime compensation. Plaintiff claims she was paid $40 to $60 (including wages
and tips) per shift and did not receive any paystubs because her pay was solely from tips.
However, during the last month of her employment she was paid an hourly rate of $6.50 by
check, but only received some of her tips. During her employment with Turnpike Café,
Plaintiff claims she never received any forms detailing how much money she was supposed
to be paid and was not provided with any breakdown of her tips or how they were calculated.
When Plaintiff confronted Ben regarding this on or around March 14, 2016, Ben told her he
regularly steals tips, itwas his restaurant to do what he wanted, and she should not return to
work. After she was terminated, ittook Plaintiff three months to find a new job, during
which time she lost $1,700.00 in lost wages. Plaintiff also alleges during her employment at
Turnpike Café, she was subjected to unwanted touching and pervasive comments by Ben.
Consequently, Plaintiff claims she suffered emotional difficulties which led to her leaving
college for a period of time and seeing a therapist.
In opposition, Defendants argue itsfailure to provide discovery was not willful,
deliberate, and/or contumacious conduct, and Plaintiff is not entitled to a presumption under
New York Labor Law. Defendants have submitted, inter alia, the following: Affidavit from
Ben; Affidavit from Igor Isacharov; affidavit from Natali Nasiev; tip sheet; text messages;
Plaintiff's hiring records; wage rate sheet; pay stubs; and Weiner Retainer Agreement.
Based upon these documents, Defendants claim Plaintiff's gratuities were not
misappropriated, she was paid allwages earned, and she never worked overtime. Defendants
also claim when hired, allwaiters and servers are given a verbal explanation of the job
duties, work schedule, dress code, and a detailed explanation of how tips will be calculated
and distributed. According to Defendants, Plaintiff was terminated for cause on March 13,
2016. In addition, Ben denies any inappropriate contact with Plaintiff.
Regarding discovery failures, Defendants claim they provided documents to their
attorney, Stephen Hans, Esq. Instead of disclosing these documents to Plaintiff, Defendants
claim Mr. Hans moved to be relieved as counsel. After Hans was relieved as counsel,
Defendants claim they retained another attorney, but that attorney never filed a Notice of
Appearance. In December 2019, Defendants retained the Crawford Law Firm.
Consequently, Defendants argue they have a reasonable excuse for failing to comply with the
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Court's February 22, 2019 order, and a meritorious claim. In the alternative, Defendants
request that the Court excuse itsdefault in the interests of justice.
The proponent of a summary judgment motion must tender evidentiary proof in
admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect
Hosp., 68 NY2d 320 [1986]). Once this has been the burden shifts to the non-
showing made,
moving party to produce evidentiary proof in admissible form sufficient to establish the
existence of material issues of fact that require a trialfor resolution (see Alvarez v Prospect
Hosp., supra; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a
showing requires denial of the motion, regardless of the sufficiency of the opposing papers
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Here the Court finds that Plaintiff has established her prima facie entitlement to
summary judgment through the submission of her affidavit. The Court also finds that
Defendants have failed to raise triable issues of fact. Pursuant to CPLR 3126, where a party
"refuses to obey an order for disclosure or willfully fails to disclose information which the
disclosed,"
court finds ought to have been the Court may, inter alia, strike that party's
pleadings or portions thereof (CPLR 3126[3]; see CDR Creances S.A.S. v Cohen, 23 NY3d
307, 317-318 [2014]; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22
NY3d 877, 880 [2013]; Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). The nature and degree of
the sanction to be imposed is a matter within the broad discretion of the trial court (see
Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., supra at 880; Westervelt v
Westervelt, 163 AD3d 1036, 1037 [2d Dept. 2018]). "Although courts should resolve
actions on the merits when possible, a court may strike [a pleading] upon a clear showing
that [a party's] failure to comply with a disclosure order was the result of willful and
conduct"
contumacious (Pastore v Utilimaster Corp., 165 AD3d 685, 686 [2d Dept.
2018] [internal quotation marks omitted]; see Tanriverdi v United Skates of Am., Inc., 164
AD3d 858, 860 [2d Dept. 2018]). "The willful or contumacious character of a party's
conduct can be inferred from the party's repeated failure to respond to demands or to comply
orders' failures"
with discovery and the absence of a reasonable excuse for these (Westervelt
v Westervelt, supra at 1037, quoting Montemurro v Memorial Sloan-Kettering Cancer Ctr.,
94 AD3d 1066, 1066 [2d Dept. 2012]; see Honghui Kuang v MetLife, 159 AD3d 878, 881
[2d Dept. 2018]).
Here, the Court finds Defendants have failed to provide a reasonable excuse for
failing to comply with the order issued on February 22, 2019. Defendants claim that they did
not willfully ignore Plaintiff's discovery demands, because they thought their attorney was
handling this matter is vague, conclusory and unsubstantiated, and does not constitute a
reasonable excuse for failing to comply with this Court's prior order (see Vardaros v Zapas,
105 AD3d 1037 [2d Dept 2013]; Wells Fargo Bank v Linzenberg, 50 AD3d 674 [2d Dept
2008]; Canty v Gregory, 37 AD3d 508 [2d Dept 2007]). Since Defendants have failed to
establish a reasonable excuse for his default, itis unnecessary to consider whether they
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established the existence of a potentially meritorious defense (LaSalle Bank N.A. v Calle,
153 AD3d 801 [2d Dept. 2017]).
Defendants also request the Court excuse their default in the interests of
justice. Although the Supreme Court retains "inherent discretionary power to relieve a party
justice"
from a judgment or order for sufficient reason and in the interest of substantial
(Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885 [2d Dept 2011]), "[a] court's
inherent power to exercise control over itsjudgment is not plenary, and should be resorted to
only to relieve a party from judgments taken through [fraud], mistake, inadvertence, surprise
neglect"
or excusable (Nationstar Mtge., LLC v Russo, 167 AD3d 913, 915 [2d Dept
2018]). Here, Defendants have failed to set forth a sufficient basis for excusing their failure
to comply with this Court's order issued on February 22, 2019. Consequently, the Court
finds Defendants are precluded from presenting any documents and/or testimony at trial. As
such, the affidavits and documents Defendants submitted in opposition to this motion are not
admissible.
Defendants'
Even ifthe Court were to consider opposition, the documents it
submitted failed to raise a triable issue of fact. The records Defendants produced and the
affidavits they submitted are insufficient for the following reasons: (i) they do not reflect any
contemporaneous tip records from the Point of Sale or Square Systems, (ii) they do not
reflect any time records, (iii)they are only partial pay records only reflecting the time that
the Plaintiff was paid on the books by Defendants, and (iv) there are no credit card receipts.
Accordingly, Plaintiff's motion for summary judgment is granted, and itis
ORDERED, Plaintiff is granted a Judgment at nine percent (9%) interest on the
claims for wage and hour violations in the amount of $83,982.09, and the retaliation claims
in the amount of $3,400.00, and itis
ORDERED, and Inquest shall be held in the TSP Part on August 3, 2020 at 9:30 am
on Plaintiff's claims for a hostile workplace, and attorney's fees, cost, and expenses.
Dated: April 30, 2020
ROBERT L CALORAS, J.S.C.
FILED
5 / 4 /2020
COUNTY CLERK
QUEENS COUNTY
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SUPREME COURT STATE OF NEW YORK
COUNTY OF QUEENS
----------------------------------------------------X Index No.: 700815/2017
EDEN TAKHALOV, on behalf of themselves and
others similarly situated,
AFFIDAVIT OF SERVICE
Plaintiffs,
- against -
UNION TURNPIKE CAFÉ, INC.; IGOR
ISACHAROV; BEN ISACHAROV; or any other
related entities or individuals.
Defendant.
-------------------------------------------------------X
STATE OF NEW YORK,
ss.:
COUNTY OF NASSAU
Stacy Sterling-Williams being duly sworn, deposes and says the following under oath and
penalty of perjury:
1. That I am over 18 years of age, I am not a party to the action, and I reside in Nassau
County in the State of New York.
2. That on June 5, 2020, I served a true and accurate copy of the Notice of Appeal,
Informational Statement, and copy of Order Appealed from, E-filing and by mailing the same in a
sealed envelope, with postage prepaid thereon, in a US Postal Office or official depository of the
US Postal Service within the State of New York, addressed to the last known address of the
addressee as indicated below:
TO: LEEDS BROWN LAW, P.C.
Michael Tompkins, Esq.
Attorney for Plaintiff
EDEN TAKHALOV
One Old Country Road, Suite 347
Carle Place, NY 11514
(516) 873-9550
Dated: Floral Park, New York
Preview
FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/08/2020 SUPREME COURT STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------------X Index No.: 700815/2017 EDEN TAKHALOV, on behalf of themselves and others similarly situated, NOTICE OF APPEAL Plaintiffs, - against - UNION TURNPIKE CAFÉ, INC.; IGOR ISACHAROV; BEN ISACHAROV; or any other related entities or individuals. Defendant(s). -------------------------------------------------------------------X SIRS: PLEASE TAKE NOTICE, that the Defendant’s, UNION TURNPIKE CAFÉ, INC. IGOR ISACHAROV; BEN ISACHAROV by and through their attorneys, The Crawford Law firm, PC, hereby appeals to the Appellate Division of the Supreme Court of the State of New York, in and for the Second Department, from each and every part of the Order filed on April 30, 2020,which was entered in the Office of the Clerk of the Court, Queens County, on May 6, 2020. (See copy of Order with Notice of Entry efiled on April 30, 2020 annexed hereto as exhibit A). Dated: Floral Park, New York June 5, 2020 Yours, etc. /s/ Mark A. Crawford, Esq. _________________________ MARK A. CRAWFORD ESQ. THE CRAWFORD LAW FIRM, P.C. Attorneys for Defendant(s) 244-16 Jericho Turnpike Floral Park, NY 11001 Tel: (516) 492-3147 Fax: (516)-750-0111 TO: LEEDS BROWN LAW, PC Attorney for Plaintiff EDEN TAKHALOV One Old Country Road, Suite 347 Carle Place, NY 11514 (516) 873-9550 1 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 Supreme Gourt of tig State of New yorlt Appellate Binision: Second -lubicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 - Civil [a]) Case Title:Set forth the title of thecase as itappears on the stemmews. notice of petitionor orderto For Court of Original Instance show cause by which the matter was oris tobe commenced. or as amended. EDEN TAKHALOV, on behalf of themselves and others similarly situated, Date Notice of Appeal Filed - against - UNION TURNPlKE CAFÉ, INC.; IGOR ISACHAROV; BEN ISACHAROV; or any other related entities or individuals. For Appellate Division O Civil Action O CPLR article78 Proceeding Appeal O Transferred Proceeding O CPLR article75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR Article78 O Executive Law § 298 [ ] ActionCommenced under CPLR 214-g O Habeas Corpus Proceeding CPLR Article78 O Eminent Domain CPLR 5704 Review O Labor Law 220 or 220-b O Law § 36 Public Officers O Tax Real Property Law § 1278 O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation M Torts (other than foreclosure) InformationalStatement - Civil 2 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 Paper Appealed From (Check one only): Ifan appeal has been taken from more than one order or judgment by the filingof this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. O Amended Decree O Determination E Order O Resettled Order O Amended Judgement O Finding O Order & Judgment O Ruling O Amended Order O Interlocutory Decree O Partial Decree O Other (specify): O Decision O Interlocutory Judgment O Resettled Decree O Decree O Judgment O Resettled Judgment Court: Supreme Court 8 County: Queens 5 Dated: 04/30/2020 Entered: 05/06/20 Judge (name in full):Hon.Robert I. Caloras Index No.:700815/2017 Stage: O Interlocutory E Final O Post-Final Trial: O Yes E No IfYes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pending in the court? O Yes S No IfYes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there isany related action or proceeding now in any court of this or any other jurisdiction, and ifso, the status of the case: Commenced by: O Order to Show Cause O Notice of Petition O Writ of Habeas Corpus Date Filed: Statute authorizing comrhencement of proceeding in the Appellate Division: Court: Choose Court county: Choose Countv Judge (name in full): Order of Transfer Date: Court: Choose Court County: Choose County Judge (name in full): Dated: Description: Ifan appeal, briefly describe the paper appealed from. Ifthe appeal isfrom an order, specify the relief requested and whether the motion was granted or denied. Ifan original proceeding commenced in thiscourt or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. Ifan application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. The court erroneously granted the Plaintiff's motion for Summary Judgment on the claims for wage and hour violation and the retaliation claim and ordering an inquest on the hostile work place claims. InformationalStatement - Civil 3 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 Issues: Specify the issues proposed to be raised on the appeal, proceedirig, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific reliefsought on appeal. That Vacatur is sought on each and every part of the DecisionlOrder filed and recorded April 30, 2020 and entered in Supreme Court on May 6, 2020, as the same was arbitrary and capricious. The grounds to be advanced are as follows: That granting the motion for Summary Judgment in favor of the Plaintiff on all issues is erronous and substantially prejudices the Defendants. Instructions: Fillinthe name of each party to the action or proceeding, one name per line. Ifthis form isto be filed for an appeal, indicate the status of the party inthe court of original instance and his,her, or itsstatus in thiscourt, ifany. If this form isto be filed for a proceeding commenced in this court, fillin only the party's name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status 1 EDEN TAKHALOV Plaintiff 8 Respondent 8 2 UNION TURNPIKE CAFÉ, INC. Defendant B Appe!!ant 8 3 IGOR ISACHAROV Defendant 8 Appellant 8 4 BEN ISACHAROV Defendant 8 Appellant 8 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Informational Statement - Civil 4 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 Instructions: Fillinthe names of the attorneys or firms for the respective parties. Ifthis form is tobe filedwith the notice of petition or order to show cause by which a special proceeding is tobe commenced inthe Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or Se" himself, the box marked "Pro must be checked and the appropriate information for that litigantmust be supplied in the spaces provided. Attorney/Firm Name:LEEDS BROWN LAW, P.C. Address: One Old Country Road, Suite 347 City: Carle Place State: NY Zip: 11514 Telephone No: 516-873-9550 E-mail Address: MTompkins@LeedsBrownLaw.com Attorney Type: Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): 1 Attorney/Firm Name: The Crawford Law Firm, PC Address: 244-16 Jericho Turnpike City: FloralPark State: NY Zip:11001 Telephone No: 516-492-3147 E-mail Address: info@crawfordlawpractice.com Attorney Type: Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): 2 ] Attorney/Firm Name: The Crawford Law Firm, PC Address: 244-16 Jericho Turnpike City: FloralPark State: NY Zip: 11001 Telephone No: 516-492-3147 E-mail Address: info@cravvÃórdiawpractice.com Attorney Type: M Retained O Assigned O Goverñrñéñt O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): 3 Attorney/Firm Name: The Crawford LAw Firm,PC Address: 244-16 Jericho Turnpike City: FloralPark State: NY Zip: 11001 Telephone No: 516-492-3147 E-mail Address: info@crawfordiawpractice.com Attorney Type: Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): 4 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained O Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: O Retained Assigned O Government O Pro Se O Pro Hac Vice Party or Parties Represented (setforth party number(s) from table above): InformationalStatement - Civil 5 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 INDEX NO. 700815/2017 FILED : QUEENS COUNTY CLERK 05/0 6/2020 12 : 42 PM) NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 05/06/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS EDEN TAKHALOV, on behalf of themselves and others similarly situated ' Index No.: 700815/2017 Plaintiffs, NOTICE OF ENTRY - against - UNION TURNPIKE CAFÉ, INC.; IGOR ISACHAROV; BEN ISACHAROV; or any other related entities or individuals, Defendants. PLEASE TAKE NOTICE that the within is a true copy of a signed Short Form Order by the Hon. Robert I.Caloras, Justice of the Supreme Court, State ofNew York, dated April 30, 2020, and entered on March 4, 2020 by the Clerk of the Court. Dated: May 6, 2020 Carle Place, New York /S/ Michael A. Tompkins, Esq. LEEDS BROWN LAw, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 Attorneys for Plaintiff Cc: All Counsel on Record (via NYSCEF) 1 of 6 6 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 (FILED : QUEENS COUNTY CLERK 05/04/2020 GS : 8G W INDEX NO. 700815/2017 NYSCEF DOC. NO. 10@ RECEIVED NYSCEF: 05/06/2020 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY PRESENT: HON. ROBERT L CALORAS PART 36 Justice X EDEN TAKHALOV, on behalf of themselves and others similarly situated, Index No. 700815/17 Plaintiff, Motion Date: 3/12/20 -against- Seq. No. 8 UNION TURNPIKE CAFÉ, INC.; IGOR ISACHAROV; BEN ISACHAROV; or any other related entities or individuals, Defendants. X The following papers numbered E60-E68, E71-E99 read on this motion by Plaintiff for an order for the following: (1) granting Plaintiff's summary judgment pursuant to CPLR § 3212 for all claims asserted in the complaint, (2) for damages as detailed and calculated in Plaintiff's claims for wage and hour violations, (3) for an inquest as to the damages under Plaintiff's Hostile Work Environment claim, Plaintiff's Retaliation claim, reasonable attorneys' fees, and costs under Labor Law and its implementing regulations. PAPERS NUMBERED Notice of Motion-Affirmation-Exhibits-Memo of Law................. E60-E68 Affirmation in Opposition-Affidavits-Exhibits-Memo of Law... E71-E96 Reply Affirmation-Exhibit-Memo of Law........................... E97-E99 Upon the foregoing papers, itis ordered that the motion by the Plaintiff Defendants is granted for the following reasons: Plaintiff commenced this action by filinga Summons and Complaint on January 18, Defendants' 2017 based on work she performed at restaurant commonly known as the Union Turnpike Café, asserting claims for failure to pay minimum wage compensations, failure to pay overtime compensations, illegal retention of gratuities, failure to pay wages, failure to provide Wage Theft Notices, hostile work environment, sexual harassment, and retaliation. Defendants' In an order, February 22, 2019, this Court granted Plaintiff's motion to strike Answer or for an order of preclusion, without opposition, wherein itdetermined the following: 2 of 5 7 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 FILED : QUEENS COUNTY CLERK 05/04/2020 BS : BG W INDEX NO. 700815/2017 NYSCEF DOC. NO. 10@ RECEIVED NYSCEF: 05/04/2020 In a decision, dated July 13, 2018, Hon. Diccia T. Pineda-Kirwan granted defendant counsel's motion to be relieved as counsel, and granted a 60 day stay for defendant to retain new counsel. Over 60 days have transpired since that order, accordingly, the stay is lifted.Accordingly, itis ORDERED, that the clerk is directed to lift the stay and restore this matter; and itis further ORDERED, that defendants shall provide plaintiff the following documents within 30 days: all plaintiffs' documents and information relating to employment with defendants including all payroll, time, tip and wage notice records as well as personnel files for allworkers, or defendant shall be precluded from presenting any documents not provided at the time of trial;and itis further ORDERED, that depositions of defendant Igor Isacharov, defendant Ben Isacharov, and a representative of defendant corporation Union Turnpike Café, Inc. shall be held on or before June 3, 3019; and itis further ORDERED, that the deadline to move for class certification is extended to July 18, 2019 (45 days after the completion of the depositions), and itis further ORDERED, that plaintiff shall filea note of issue on or before July 19, 2019. This order was served upon Defendants by regular mail on March 6, 2019 (see Affidavit of Service E-filed under E-57). Thereafter, on July 19, 2019, Plaintiff filed a Note of Issue. Plaintiff now moves for summary judgment. Plaintiff has submitted, among other things, the following: Summons and Complaint; Plaintiff's affidavit; order, dated February 22, 2019; Plaintiff's Combined Discovery Demands; and a memo of law. Based upon these documents, Plaintiff argues she is entitled to damages in the amount of $83,982.09 for wage and hour violations, $3,400.00 in retaliation, and damages from the hostile workplace and attorney's fees, costs and expenses to be determined at an Inquest. 2 of 6 8 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 FILED : QUEENS COUNTY CLERK 05/04/2020 89 : 3G W INDEX NO. 700815/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/06/2020 In her affidavit, Plaintiff stated she worked for Turnpike Café as a waiter and a server from approximately 2015 through March 2016. During that time, she typically worked five or six days per week on for shifts of approximately eight hours each. While working for Defendants, Plaintiff claims she was not paid the minimum wage and did not receive all the gratuities owed to her. Plaintiff claims she was typically paid approximately 50% of her tips and estimates she was missing between $45 to $124 in tips per night. Plaintiff claims Ben Isacharov (hereinafter "Ben") (the owner and manager) would regularly steal her tips. Plaintiff claims she worked between 40 and 48 hours during a typical week and did not receive overtime compensation. Plaintiff claims she was paid $40 to $60 (including wages and tips) per shift and did not receive any paystubs because her pay was solely from tips. However, during the last month of her employment she was paid an hourly rate of $6.50 by check, but only received some of her tips. During her employment with Turnpike Café, Plaintiff claims she never received any forms detailing how much money she was supposed to be paid and was not provided with any breakdown of her tips or how they were calculated. When Plaintiff confronted Ben regarding this on or around March 14, 2016, Ben told her he regularly steals tips, itwas his restaurant to do what he wanted, and she should not return to work. After she was terminated, ittook Plaintiff three months to find a new job, during which time she lost $1,700.00 in lost wages. Plaintiff also alleges during her employment at Turnpike Café, she was subjected to unwanted touching and pervasive comments by Ben. Consequently, Plaintiff claims she suffered emotional difficulties which led to her leaving college for a period of time and seeing a therapist. In opposition, Defendants argue itsfailure to provide discovery was not willful, deliberate, and/or contumacious conduct, and Plaintiff is not entitled to a presumption under New York Labor Law. Defendants have submitted, inter alia, the following: Affidavit from Ben; Affidavit from Igor Isacharov; affidavit from Natali Nasiev; tip sheet; text messages; Plaintiff's hiring records; wage rate sheet; pay stubs; and Weiner Retainer Agreement. Based upon these documents, Defendants claim Plaintiff's gratuities were not misappropriated, she was paid allwages earned, and she never worked overtime. Defendants also claim when hired, allwaiters and servers are given a verbal explanation of the job duties, work schedule, dress code, and a detailed explanation of how tips will be calculated and distributed. According to Defendants, Plaintiff was terminated for cause on March 13, 2016. In addition, Ben denies any inappropriate contact with Plaintiff. Regarding discovery failures, Defendants claim they provided documents to their attorney, Stephen Hans, Esq. Instead of disclosing these documents to Plaintiff, Defendants claim Mr. Hans moved to be relieved as counsel. After Hans was relieved as counsel, Defendants claim they retained another attorney, but that attorney never filed a Notice of Appearance. In December 2019, Defendants retained the Crawford Law Firm. Consequently, Defendants argue they have a reasonable excuse for failing to comply with the a of 5 9 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 FILED : QUEENS COUNTY CLERK 05(0 4 / 2020 39: BG W INDEX NO. 700815/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/06/2020 Court's February 22, 2019 order, and a meritorious claim. In the alternative, Defendants request that the Court excuse itsdefault in the interests of justice. The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once this has been the burden shifts to the non- showing made, moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trialfor resolution (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Here the Court finds that Plaintiff has established her prima facie entitlement to summary judgment through the submission of her affidavit. The Court also finds that Defendants have failed to raise triable issues of fact. Pursuant to CPLR 3126, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the disclosed," court finds ought to have been the Court may, inter alia, strike that party's pleadings or portions thereof (CPLR 3126[3]; see CDR Creances S.A.S. v Cohen, 23 NY3d 307, 317-318 [2014]; Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]; Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). The nature and degree of the sanction to be imposed is a matter within the broad discretion of the trial court (see Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global Strat Inc., supra at 880; Westervelt v Westervelt, 163 AD3d 1036, 1037 [2d Dept. 2018]). "Although courts should resolve actions on the merits when possible, a court may strike [a pleading] upon a clear showing that [a party's] failure to comply with a disclosure order was the result of willful and conduct" contumacious (Pastore v Utilimaster Corp., 165 AD3d 685, 686 [2d Dept. 2018] [internal quotation marks omitted]; see Tanriverdi v United Skates of Am., Inc., 164 AD3d 858, 860 [2d Dept. 2018]). "The willful or contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply orders' failures" with discovery and the absence of a reasonable excuse for these (Westervelt v Westervelt, supra at 1037, quoting Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066 [2d Dept. 2012]; see Honghui Kuang v MetLife, 159 AD3d 878, 881 [2d Dept. 2018]). Here, the Court finds Defendants have failed to provide a reasonable excuse for failing to comply with the order issued on February 22, 2019. Defendants claim that they did not willfully ignore Plaintiff's discovery demands, because they thought their attorney was handling this matter is vague, conclusory and unsubstantiated, and does not constitute a reasonable excuse for failing to comply with this Court's prior order (see Vardaros v Zapas, 105 AD3d 1037 [2d Dept 2013]; Wells Fargo Bank v Linzenberg, 50 AD3d 674 [2d Dept 2008]; Canty v Gregory, 37 AD3d 508 [2d Dept 2007]). Since Defendants have failed to establish a reasonable excuse for his default, itis unnecessary to consider whether they e of 6 10 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 FILED : QUEENS COUNTY CLERK 05/06/2020 as : 80 M INDEX NO. 700815/2017 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/06/2020 established the existence of a potentially meritorious defense (LaSalle Bank N.A. v Calle, 153 AD3d 801 [2d Dept. 2017]). Defendants also request the Court excuse their default in the interests of justice. Although the Supreme Court retains "inherent discretionary power to relieve a party justice" from a judgment or order for sufficient reason and in the interest of substantial (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885 [2d Dept 2011]), "[a] court's inherent power to exercise control over itsjudgment is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud], mistake, inadvertence, surprise neglect" or excusable (Nationstar Mtge., LLC v Russo, 167 AD3d 913, 915 [2d Dept 2018]). Here, Defendants have failed to set forth a sufficient basis for excusing their failure to comply with this Court's order issued on February 22, 2019. Consequently, the Court finds Defendants are precluded from presenting any documents and/or testimony at trial. As such, the affidavits and documents Defendants submitted in opposition to this motion are not admissible. Defendants' Even ifthe Court were to consider opposition, the documents it submitted failed to raise a triable issue of fact. The records Defendants produced and the affidavits they submitted are insufficient for the following reasons: (i) they do not reflect any contemporaneous tip records from the Point of Sale or Square Systems, (ii) they do not reflect any time records, (iii)they are only partial pay records only reflecting the time that the Plaintiff was paid on the books by Defendants, and (iv) there are no credit card receipts. Accordingly, Plaintiff's motion for summary judgment is granted, and itis ORDERED, Plaintiff is granted a Judgment at nine percent (9%) interest on the claims for wage and hour violations in the amount of $83,982.09, and the retaliation claims in the amount of $3,400.00, and itis ORDERED, and Inquest shall be held in the TSP Part on August 3, 2020 at 9:30 am on Plaintiff's claims for a hostile workplace, and attorney's fees, cost, and expenses. Dated: April 30, 2020 ROBERT L CALORAS, J.S.C. FILED 5 / 4 /2020 COUNTY CLERK QUEENS COUNTY 5 of 5 11 of 13 FILED: QUEENS COUNTY CLERK 06/05/2020 06:55 PM INDEX NO. 700815/2017 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 06/05/2020 06/08/2020 SUPREME COURT STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------X Index No.: 700815/2017 EDEN TAKHALOV, on behalf of themselves and others similarly situated, AFFIDAVIT OF SERVICE Plaintiffs, - against - UNION TURNPIKE CAFÉ, INC.; IGOR ISACHAROV; BEN ISACHAROV; or any other related entities or individuals. Defendant. -------------------------------------------------------X STATE OF NEW YORK, ss.: COUNTY OF NASSAU Stacy Sterling-Williams being duly sworn, deposes and says the following under oath and penalty of perjury: 1. That I am over 18 years of age, I am not a party to the action, and I reside in Nassau County in the State of New York. 2. That on June 5, 2020, I served a true and accurate copy of the Notice of Appeal, Informational Statement, and copy of Order Appealed from, E-filing and by mailing the same in a sealed envelope, with postage prepaid thereon, in a US Postal Office or official depository of the US Postal Service within the State of New York, addressed to the last known address of the addressee as indicated below: TO: LEEDS BROWN LAW, P.C. Michael Tompkins, Esq. Attorney for Plaintiff EDEN TAKHALOV One Old Country Road, Suite 347 Carle Place, NY 11514 (516) 873-9550 Dated: Floral Park, New York