Martinenko v. 212 Steakhouse Inc.

Background

Nino Martinenko brought this action against 212 Steakhouse Inc. and Nikolay Volper, asserting violations of the Federal Labor Standards Act and the New York Labor Law. Martinenko and opt-in plaintiff Dagmara Huk moved under Federal Rule of Civil Procedure 23 to certify a class for the New York Labor Law claims. They also asked the court to appoint them as class representatives, appoint their lawyers as class counsel, require the defendants to produce a class list, and approve a proposed class notice.

Review of the Recommendation

Magistrate Judge Robert W. Lehrburger recommended granting the class-certification motion. The recommendation warned that objections were due within 14 days and that failing to object would waive further review. No party objected by the April 26, 2023 deadline. The court therefore reviewed the recommendation for clear error, meaning an obvious mistake on the record, and found its reasoning sound and supported by the facts and law.

Ruling

Judge Jennifer L. Rochon adopted the recommendation in its entirety and granted the plaintiffs’ motion for class certification. The certified class consists of all tipped employees—servers, runners, bussers, and bartenders—who worked for the defendants at 212 Steakhouse at any time on or after January 20, 2016.

The court also:

- appointed Martinenko and Huk as class representatives; - appointed Joseph & Kirschenbaum LLP as class counsel; - required the defendants to produce a complete class list to the extent they possessed, controlled, or had custody of information needed to compile it; and - approved and authorized issuance of the class notice presented with the plaintiffs’ filing.

The court stated that the absence of timely objections, after clear notice of the consequences, precluded appellate review of this decision. It directed the Clerk of Court to terminate the class-certification motion.