Allen v. County of Nassau

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JAMES ALLEN, HOWARD RIEGLER, VICTOR

SOWINSKI, JR., MICHAEL BRINKLEY, NEIL

VELASCO, CATHY JONES, PATRICK MADDEN,

JR., MICHAEL GIBALDI, PAUL WALTERS, JAMES MEMORANDUM & ORDER

PRINCE, CRAIG STEWART, PEDRO VERA, JR., 22-CV-1572 (HG) (JMW)

NICOLE SALERNO, BESNIK GJONLEKAJ,

THOMAS CINQUE, CHRIS FOTOPOULOS, JOSEPH

LUCKMAN, ROBERT BRANCATO, MICHAEL

CAPOZIELLO, FRANK PASSANISI, III, JOSEPH W.

BALLETTA, BRIAN TAMEO, GREGG SPAULDING,

BRYAN C. VOGELEY, RALPH MERZ, TIMOTHY

MARSHALL, ESTATE OF MICHAEL JAMES,

Plaintiffs,

v.

COUNTY OF NASSAU,

Defendant.

HECTOR GONZALEZ, United States District Judge:

Plaintiffs, current and former employees of Nassau County (“Defendant”), bring this

action against Defendant for alleged violations of: (i) the Fair Labor Standards Act, 29 U.S.C.

§§ 201 et seq.; (ii) the Equal Pay Act, 29 U.S.C. § 206(d); (iii) the terms of a court order

approving the parties’ settlement in the class action lawsuit Ebbert v. Nassau Cnty., No. 05-cv-

5445 (E.D.N.Y. filed Dec. 22, 2011), ECF No. 163 (“Ebbert Order” or “Third Cause of

Action”); and (iv) Nassau County Government Law § 1307 (“Fourth Cause of Action”).

Presently before the Court are Defendants’ motions to: (i) dismiss Plaintiff’s Third and Fourth

Causes of Action and (ii) disqualify Plaintiffs’ counsel. ECF Nos. 18, 20, 22. For the reasons

set forth below, Defendant’s motion to dismiss Plaintiffs’ Third and Fourth Causes of Action is

granted in part and denied in part. Defendant’s motion to disqualify Plaintiffs’ counsel is denied.

BACKGROUND

Plaintiffs, Fire Communication Technicians I (“FCT-Is”) and Fire Communication

Technicians II (“FCT-IIs”), are current and former employees of the Nassau County Fire

Commission, Office of Fire Marshal, Fire Communications Bureau. ECF No. 10 ¶¶ 5, 23. Their

duties include receiving telephone calls placed on the Nassau County 911 emergency system and

dispatching aid, if necessary. Id. ¶ 23.

Nassau County and Plaintiffs’ union previously entered into an agreement establishing

their work schedule: three 12-hour days per week. Id. ¶¶ 24–27. Plaintiffs allege that

Defendant has violated the Fair Labor Standards Act (“FLSA”) by failing to pay overtime wages

properly through several forms of allegedly improper employment practices. First, Plaintiffs

work three days on and three days off, which results in four twelve-hour shifts every six weeks,

but they are only compensated for three days. Id. ¶¶ 19, 27, 29, 31. In other words, according to

Plaintiffs, because of the rotating nature of the schedule, “there comes a time (approximately

every six weeks) when they work a fourth 12-hour [shift] in a seven-day period but do not get

compensated for that fourth 12-hour shift.” Id. Second, Plaintiffs are not paid overtime

compensation when they work more than 40 hours during the sixth week. Id. ¶ 30, 32. Third,

Plaintiffs are compensated at the incorrect overtime rate when they work over 40 hours a week.

Id. ¶¶ 2, 33–36. Finally, Plaintiffs allegedly do not receive any breaks, including a lunch break,

during their 12-hour shifts. Id. ¶ 28.

Plaintiffs further allege that Defendant’s failure to provide breaks also violates the Equal

Pay Act (“EPA”), Nassau County Government Law § 1307 (“NCGL”), and the court-approved

class action settlement in Ebbert. Specifically, Plaintiffs allege that Defendant has improperly

refused to give breaks to the predominantly male FCT-Is and FCT-IIs despite giving breaks to

the predominantly female employees who handle emergency calls for the county’s police

department as Police Communications Operators (“PCOs”) and Police Communications

Operator Supervisors (“PCOSs”). Id. ¶¶ 3, 11, 38–40. Plaintiffs allege that the PCOs and

PCOSs receive four 30-minute paid breaks and a one-hour lunch every 12-hour shift, but the

FCT-Is and FCT-IIs receive no breaks of any kind. Id.

On March 18, 2022, Plaintiffs filed a Notice of Claim with the Defendant. Id. ¶ 41. On

March 22, 2022, Plaintiffs filed a complaint against Defendant alleging violations of: (i) FLSA;

(ii) the EPA; and (iii) the Ebbert Order. ECF No. 1. On April 19, 2022, Plaintiffs filed an

Amended Complaint, in which they added a claim under NCGL § 1307. ECF No. 10.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “When determining the sufficiency of

plaintiffs’ claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in

plaintiffs’ amended complaint, which are accepted as true, to documents attached to the

complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may

be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge

and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

While the Court must draw all reasonable inferences in favor of the non-moving party,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice” to state a plausible claim. Iqbal, 556 U.S. at 678.

DISCUSSION

I. Plaintiffs’ Third Cause of Action: Breach of the Ebbert Order

In November 2005, PCOs and PCOSs commenced an action against Nassau County

alleging that while the predominantly female PCOs and PCOSs were upgraded to the same salary

grade as the male FCT-Is and FCT-IIs, they continued to be paid less because they were not

“upgraded to their respective seniority step or in other words they were not given vertical

upgrades” in violation of the EPA. Ebbert v. Nassau Cnty., No. 05-cv-05445 (E.D.N.Y.), ECF

No. 18-4 at 8 (internal quotation marks omitted). On December 22, 2005, Magistrate Judge

Tomlinson entered the Ebbert Order certifying the settlement class and approving the settlement

between the parties. ECF No. 20-1.

Plaintiffs claim that Defendant violated the Ebbert Order by failing to provide Plaintiffs

with breaks and thus maintain equality between PCOs/PCOSs and FCT-Is/FCT-IIs. ECF No.

20-14 at 6. Defendant argues that Plaintiffs’ claim for breach of the Ebbert Order should be

dismissed because: (i) Plaintiffs failed to comply with statutory notice of claim requirements;

(ii) Plaintiffs lack standing to assert a breach of contract claim; and (iii) Plaintiffs fail to state a

cause of action because the Ebbert Order does not mention breaks. ECF No. 18-11 at 9–11.

Plaintiffs characterize this claim as a “violation of a Federal Court Order and Judgment,” ECF

No. 20-14 at 11, and Defendant characterizes the claim as a breach of a settlement agreement or

contract. ECF No. 18-11 at 9–10.

The Court construes Plaintiffs’ Ebbert Order claim as a breach of contract claim. The

Ebbert Order is akin to a consent judgment, “a contract to end a lawsuit in which the parties

agree to the relief to be provided by the judgment and the wording to effectuate that relief.” New

York ex rel. Spitzer v. Saint Francis Hosp., 289 F. Supp. 2d 378, 383–84 (S.D.N.Y. 2003). For

purposes of enforcement, “a consent judgment should be construed and interpreted as a

contract.” Id. at 384.

A. Notice of Claim Requirement

“State claims brought under state law in federal court are subject to state procedural

rules.” Henneberger v. Cnty. of Nassau, 465 F. Supp. 2d 176, 197 (E.D.N.Y. 2006). New York

County Law § 52 (“Section 52”) requires the filing of a notice of claim for claims “against a

county for damage, injury or death, or for invasion of personal or property rights, of every name

and nature . . . and any other claim for damages arising at law or in equity, alleged to have been

caused or sustained in whole or in part by or because of any misfeasance, omission of duty,

negligence or wrongful act on the part of the county, its officers, agents, servants or employees.”

N.Y. County Law § 52. Section 52 incorporates the notice of claim requirements contained in

New York General Municipal Law §§ 50-e and 50-i, which require a notice of claim to be served

upon a county at least thirty days before a complaint is filed. Henneberger, 465 F. Supp. 2d at

197–98.

The plain language of Section 52 suggests that it applies to “[a]ny claim . . . against a

county . . . for damages arising at law or in equity.” N.Y. County Law § 52; see Anderson v.

Nassau Cnty. Dep’t of Corr., 558 F. Supp. 2d 283, 303 (E.D.N.Y. 2008) (“N.Y. County Law

§52(1) has broader application . . . and requires a notice of claim for claims against a county for

damage, injury or death, or for invasion of personal or property rights, of every name and nature

. . . and any other claim for damages arising at law or in equity.”) (internal quotation marks and

emphasis omitted). However, courts interpreting Section 52 have concluded that it “does not

require a filing of a notice of claim . . . where the claim is for breach of contract.” Cooper

Crouse-Hinds, LLC v. City of Syracuse, No. 16-cv-1201, 2018 WL 840056, at *10 (N.D.N.Y.

Feb. 12, 2018) (citing Copece Contracting Corp. v. Erie Cnty., 495 N.Y.S.2d 871, 871 (N.Y.

App. Div. 1985)). See also Smith v. Rise E. Sch., 502 N.Y.S.2d 780, 781 (N.Y. App. Div. 1986)

(“County Law § 52, which incorporates the provisions of General Municipal Law §§ 50-e and

50-i does not apply to actions to recover damages for breach of contract.”) (citation omitted).

Accordingly, Plaintiffs’ breach of contract claim for violation of the Ebbert Order is not subject

to Section 52’s notice of claim requirements.

B. Standing

Plaintiffs were not party to the Ebbert litigation or settlement agreement and therefore do

not have standing to assert a breach of contract claim for violation of the Ebbert Order unless

they establish that they are third-party beneficiaries. See Am. Home Energy Inc. v. AEC Yield

Cap. LLC, No. 21-cv-1337, 2022 WL 595186, at *10 (E.D.N.Y. Feb. 28, 2022) (“[In New York,]

a breach of contract action may be brought only by a party to the contract or an intended third-

party beneficiary.”). A third-party beneficiary “must establish . . . that the contract was intended

for [its] benefit.” Old Crompond Rd., LLC v. Cnty. Of Westchester, 162 N.Y.S.3d 71, 808 (N.Y.

App. Div. 2022) (internal quotation marks omitted) (alteration in original). “Courts generally

have recognized a third party’s right to enforce a contract in two situations: when the third party

is the only one who could recover for the breach of contract or when it is otherwise clear from

the language of the contract that there was an intent to permit enforcement by the third party.”

Id. at 808–09 (internal quotation marks omitted). The Ebbert Order is a final order and judgment

between the plaintiffs (PCOs and PCOSs) and defendant in the Ebbert litigation. See ECF No.

20-1. Nothing in the Ebbert Order suggests that the court intended to permit Plaintiffs to enforce

the Order. Accordingly, the Court grants Defendant’s motion to dismiss Plaintiff’s Third Cause

of Action on the ground that Plaintiffs lack standing.

C. Failure to State a Cause of Action

Plaintiffs argue that Defendant failed “to provide the FCT-Is and IIs with the four 30-

minute breaks and one-hour lunch per [12-hour] shift, that PCO/PCOSs receive,” ECF No. 20-14

at 6, in violation of page 12 of the Ebbert Order which states, “Nassau County also commits to

use its best efforts to maintain equality between the PCO/PCOS and the FCT/FCTS in the

future.” ECF No. 20-1 at 13. Plaintiffs rely on one line in a 36-page order, located in a section

providing a description of a fairness hearing regarding the settlement between the parties in the

Ebbert litigation, and conclude that they have a cause of action under the Ebbert Order. When

put in context, it is clear that the Ebbert Order is referring to equality of grade level and not to

breaks during shifts or to general parity between PCOs/PCOSs and FCT-Is/FCT-IIs. In fact, the

sentence upon which Plaintiffs rely includes a citation to the settlement agreement, which states:

3.4 Future Actions

(a) Upon the Court’s Final Approval of the Settlement Agreement, any PCO

or PCOS not in her proper step in grade 10 step, based on years of service

shall be immediately upgraded.

(b) Nassau County shall use its best efforts in the future to maintain the

equality of grade level for the PCOs and FCTs, and the PCOSs and FCTSs

respectively.

ECF No. 22-1 at 63 (emphasis added).

The Ebbert Order does not order Defendant to maintain a general equality between

PCOs/PCOSs and FCT-Is/FCT-IIs, but rather specifically refers to Defendant’s efforts to

maintain equality of grade level. Accordingly, the Court also grants Defendant’s motion to

dismiss Plaintiff’s Third Cause of Action on the separate ground that Plaintiffs fail to state a

claim.

II. Plaintiffs’ Fourth Cause of Action: Violation of Nassau County Government Law §

1307

NCGL § 1307 provides, “[i]t shall be the duty of the County Civil Service Commission . .

. to reclassify all offices and positions in the county classified service and recommend to the

Board of Supervisors an ordinance standardizing salaries and conditions of employment in all

departments, offices, institutions and agencies of the county, so that, as near as may be, equal

pay may be given for equal work.” Nassau Cnty. Charter art. XIII, § 1307. Plaintiffs allege that

Defendant violated NCGL § 1307 by failing to provide the predominantly male FCT-Is and

FCT-IIs with the four 30-minute breaks and one-hour lunch per 12-hour shift that the

predominantly female PCOs and PCOSs receive. ECF No. 10 ¶¶ 3, 38–40. Defendant argues

that Plaintiffs’ claim should be dismissed because: (i) Plaintiffs failed to comply with the

statutory notice of claim requirement; and (ii) Plaintiffs claims are barred by the doctrines of res

judicata and collateral estoppel. ECF No. 18-11 at 12–13.

A. Notice of Claim

As set forth in detail above, state law claims brought in federal court are subject to state

procedural rules, and Section 52 requires that a notice of claim be served upon a county at least

thirty days before a complaint is filed. See Henneberger, 465 F. Supp. 2d at 197. Plaintiffs

argue that they did not need to serve Defendant with a notice of claim prior to initiating the

lawsuit because: (i) they served a notice of claim thirty days before amending their complaint to

add the NCGL § 1307 cause of action, ECF No. 20-14 at 9; (ii) notice of claims only apply to

tort claims for damages and they are seeking injunctive relief, id. at 10; and (iii) the NCGL §

1307 claim is an Article 78 proceeding “alleging the County acted in an arbitrary and capricious

manner” and therefore is not subject to notice of claim requirements. Id.

As noted above, Section 52 generally has broad application. See Anderson, 558 F. Supp.

2d at 303. Contrary to Plaintiffs’ assertion, New York courts have determined that the notice of

claim requirement applies to claims for injunctive relief. See Mendik v. Inc. Vill. of Lattingtown,

906 N.Y.S.2d 599, 600 (N.Y. App. Div. 2010) (“The notice of claim requirements in . . . County

Law § 52 . . . encompass causes of actions for equitable relief.”). Courts have also applied

Section 52 to cases where Plaintiffs allege violations of state labor laws. See Gurrieri v. Cnty. of

Nassau, No. 16-cv-6983, 2017 WL 3432208, at *7–8 (E.D.N.Y. Aug. 9, 2017) (dismissing case

without prejudice and finding that Plaintiffs were required to file a notice of claim in suit against

Nassau County for violating the New York Labor Law). Plaintiffs also cannot evade notice of

claim requirements by styling their NCGL claim as an Article 78 proceeding. See Abramowitz v.

Guido, 403 N.Y.S.2d 120, 120 (N.Y. App. Div. 1978) (holding that “[r]equirement that a notice

of claim be timely filed . . . may not be evaded by resort to a CPLR article 78 proceeding”).

However, Plaintiffs’ service of the notice of claim thirty days before amending their

complaint is sufficient to meet Section 52’s notice of claim requirements. Plaintiffs filed a notice

of claim which included the NCGL cause of action on March 18, 2022, and subsequently filed an

amended complaint on April 19, 2022. See ECF Nos. 10, 10-4 at 3. Although Plaintiffs waited

thirty days before filing their amended complaint, Defendant argues that “Plaintiffs did not

comply with the statutory thirty-day waiting period before commencing this lawsuit on March

22, 2022.” ECF No. 18-11 at 11–12. As discussed previously, Plaintiffs did not have an

obligation to comply with Section 52’s notice of claim requirements when they filed their federal

and breach of contract claims against Defendant. Accordingly, Plaintiffs were not obligated to

file a notice of claim when they initiated the lawsuit because the initial complaint did not include

the NCGL claim. Compare Adams v. City of New York, 993 F. Supp. 2d 306, 320–21 (E.D.N.Y.

2014) (allowing plaintiff to amend complaint to include state law claims covered by notice of

claim submitted after lawsuit containing only federal claims was filed) with Cortland v.

Westchester Cnty., No. 07-cv-1783, 2007 WL 3238674, at *7–8 (S.D.N.Y. Oct. 31, 2007)

(denying motion to amend complaint with respect to state law claim against county employees

when plaintiff failed to file notice of claim).

B. Res Judicata and Collateral Estoppel

“The doctrine of claim preclusion, or res judicata, bars the subsequent litigation of any

claims that were or could have been raised in a prior action. To demonstrate that a claim is

barred under the doctrine of res judicata, a party must show that (1) the previous action involved

an adjudication on the merits; (2) the previous action involved the parties or those in privity with

them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the

prior action.” Mondelus v. Aug. W. Dev., LLC, No. 19-cv-4832, 2022 WL 182363, at *2

(E.D.N.Y. Jan. 20, 2022) (internal citations and quotation marks omitted) (emphasis added).

“The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been

decided in a prior action and is determinative of the issues disputed in the present action,

provided that there was a full and fair opportunity to contest the decision now alleged to be

controlling.” Mitra v. Glob. Fin. Corp., No. 09-cv-4387, 2010 WL 1529264, at *2 (E.D.N.Y.

Apr. 15, 2010).

Defendant invokes the doctrines of collateral estoppel and res judicata and argues that

Plaintiffs’ Fourth Cause of Action is precluded by AFSCME v. Cnty. of Nassau, 799 F. Supp.

1370 (E.D.N.Y. 1992) because the court in AFSCME “rendered a decision on the merits finding

that PCOs and FCTs do not perform equal work.” ECF No. 18-11 at 13 (internal quotation

marks omitted). The plaintiffs in AFSCME, female employees of Nassau County, alleged that

Nassau County “discriminates in compensation on the basis of sex by paying historically female

job classifications less than historically male classifications which require an equivalent or lesser

composite of skill, effort, responsibility and working conditions.” AFSCME, 799 F. Supp. at

1372 (emphasis added). The plaintiffs, who represented a class of women who served in various

positions, including police communications operators, police detention aides, and clerical

workers, alleged that Nassau County violated Title VII and the EPA. Id. at 1372, 1407.

“Use of collateral estoppel must be confined to situations where the matter raised in the

second suit is identical in all respects with that decided in the first proceeding and where the

controlling facts and applicable legal rules remain unchanged.” See Faulker v. Nat’l Geographic

Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005). The question of whether FCT-Is/FCT-IIs and

PCOs/PCOSs perform substantially equal work such that they should receive the same breaks is

necessarily a fact-intensive inquiry which cannot be decided at this time. The court in AFSCME

made a factual determination that “the job titles of police communications operator and of fire

communications technician are not substantially similar” after a bench trial in which it

considered, inter alia: (i) the number of supervisors PCOs/PCOSs and FCT-Is/FCT-IIs have; (ii)

the number of emergency calls received during a shift; (iii) the allocation of duties and tasks; and

(iv) the requirements for each position. See AFSCME, 799 F. Supp. at 1407–08. Importantly,

the decision in AFSCME was made in 1992. The Court cannot conclusively determine at this

stage of the proceedings whether “the controlling facts and applicable legal rules remain

unchanged.” Faulker, 409 F. 3d at 37. Furthermore, “[p]rivity for the purposes of res judicata

exists, when the interests involved in the prior litigation are virtually identical to those in later

litigation.” Mondelus, 2022 WL 182363, at *3 (internal quotation marks omitted). The parties

in each litigation are different—the plaintiffs in AFSCME were a class of female Nassau County

employees, and Plaintiffs, here, are predominantly male FCT-Is and FCT-IIs.

Based on the allegations of the Amended Complaint, both the issues and facts litigated in

AFSCME are sufficiently different from those present here, and accordingly, the Court finds that

the doctrines of collateral estoppel and res judicata are not applicable.

III. Defendant’s Motion to Disqualify Plaintiffs’ Counsel

Motions to disqualify counsel are “committed to the sound discretion of the District

Court.” Galante v. Mercedes Benz of Massapequa, LLC, No. 18-cv-2426, 2022 WL 1019007, at

*3 (E.D.N.Y. Jan. 20, 2022) (citing Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994)). In

the Second Circuit, motions to disqualify counsel are generally disfavored “as they are often

interposed for tactical reasons, and . . . even when made in the best of faith, such motions

inevitably cause delay. Accordingly, such motions are subjected to a high standard of proof.”

Pagan v. C.I. Lobster Corp., 549 F. Supp. 3d 356, 359 (S.D.N.Y. 2021) (citations and internal

quotation marks omitted).

Defendant asserts that Plaintiffs’ counsel, the Law Offices of Louis D. Stober, Jr., is

violating Rule 1.7 of New York’s Rules of Professional Conduct in representing differing

interests. See ECF No. 18-11 at 13. “Rule 1.7 of New York Rules of Professional Conduct . . .

states in pertinent part that a lawyer shall not represent a client if a reasonable lawyer would

conclude that . . . the representation will involve the lawyer in representing differing interests.”

Pagan, 549 F. Supp. 3d at 360–61. In substance, Defendant argues that a conflict of interest

exists because “Plaintiffs’ counsel is pursuing claims on behalf of a class of individuals

(predominantly male FCTs) that is directly in conflict with his pre-existing representation of

another class of individuals (predominantly female PCOs).” ECF No. 18-11 at 13 (internal

quotation marks omitted). Defendant references four cases in which Plaintiffs’ counsel pursued

claims of gender discrimination on behalf of predominately female PCOs: (i) Chodkowski v.

Cnty. of Nassau, No. 16-cv-5770 (E.D.N.Y.); (ii) Chodkowski v. Cnty. of Nassau, No.

603925/2017 (N.Y. Sup. Ct.); (iii) Davidson v. Cnty. of Nassau, No. 18-cv-1182 (E.D.N.Y.);

and (iv) Abbananto v. Cnty. of Nassau, No. 19-cv-1102 (E.D.N.Y.). Id. These lawsuits are all

class actions in which plaintiffs, predominantly female PCOs and PCOSs, allege that Nassau

County engaged in various types of improper compensation practices that violated the FLSA, the

EPA, state, and county laws. See ECF Nos. 18-6, 18-7, 20-8, 20-11.

The Court disagrees with Defendant’s assertion that the law “permits recovery by only

one or the other set of litigants.” ECF No. 22 at 11. Here, Plaintiffs—FCT-Is and FCT-IIs—

seek overtime wages and breaks. In the prior lawsuits filed by Plaintiffs’ counsel, the PCO and

PCOS plaintiffs sought overtime wages, holiday pay, mileage allowance and shift differentials.

Both sets of plaintiffs are not “inherently” in opposition to one another. See ECF No. 18-11 at

14. Although they are both seeking recovery against the same defendant, if their allegations are

true, they are entitled to separate monetary and/or injunctive relief.

Defendant’s argument is premised on speculative assertions regarding the possible ways

to resolve the alleged disparities between the predominantly female PCOs/PCOSs and the

predominantly male FCT-Is/FCT-IIs: (i) to “eliminate the breaks received by Nassau County’s

PCOs,” or (ii) to “reduc[e] and/or eliminat[e] the shift differential, holiday pay, and mileage

allowance for non-contiguous overtime allegedly received by FCTs.” ECF No. 22 at 12. These

supposed solutions would potentially decrease the compensation paid to one group of Plaintiffs’

counsel’s clients in order to provide supposedly equal treatment to another group of clients.

Defendant does not claim, however, that these are the only possible—or even the most likely—

resolutions of the pending matters. Id. Defendant simply posits “hypothetical scenarios of

conflict,” which are not sufficient to meet the high standard of proof necessary for

disqualification. See Rothberg v. Phil’s Main Roofing, LLC, No. 14-cv-10195, 2016 WL

2344882, at *2 (S.D.N.Y. May 2, 2016).

Importantly, this case is not a class or collective action, so there are no absent class

members whose choice of counsel the Court needs to safeguard. Each Plaintiff here has

individually agreed to counsel’s representation and has “fully accept[ed] Mr. Stober as [their]

attorney knowing full well that he is also currently representing the PCO/PCOSs in three cases . .

. seeking to equalize shift differential, holiday pay and mileage allowance on non-contiguous

overtime with FCT I/IIs.” ECF No. 20-13 at 2. “Recognizing the serious impact of attorney

disqualification on the client’s right to select counsel of his choice, [the Second Circuit has]

indicated that such relief should ordinarily be granted only when a violation of the Canons of the

Code of Professional Responsibility poses a significant risk of trial taint. Consequently, [t]he

appearance of impropriety alone does not warrant disqualification.” Rothberg, 2016 WL

2344882, at *2 (citation and internal quotation marks omitted) (alterations in original).

Accordingly, as Defendant fails to meet the requisite high standard of proof to justify the

disqualification of Plaintiffs’ counsel, the motion to disqualify must be denied.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss Plaintiffs’ Third and Fourth

Causes of Action is granted in part and denied in part. Defendant’s motion to disqualify

Plaintiffs’ counsel is denied.

SO ORDERED.

/s/ Hector Gonzalez________

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

September 26, 2022