Opinion
INDEX 159656/2019
02-07-2022
JOSEPH MONROE, RUSSELL DAVILA Plaintiff, v. VEP ASSOCIATES LLC, Defendant. MOTION SEQ. No. 002
HON. MELISSA CRANE Justice
Unpublished Opinion
MOTION DATE 12/17/2021
DECISION+ ORDER ON MOTION
HON. MELISSA CRANE Justice
The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for MISCELLANEOUS.
This case arises from unpaid wages and New York Labor Law violations during the period that plaintiffs Joseph Monroe ("Monroe") and Russell Davila ("Davila") (together, the "Plaintiffs") worked for defendant VEP Associates LLC d/b/a VEP American Fire and Security ("VEP Associates").
Plaintiffs initiated this case on October 4, 2019 by filing a Summons and Complaint on behalf of themselves and a putative class of similar situated former employees of Defendant (NYSCEF Doc. No. 2). Defendant failed to timely answer plaintiffs' Summons and Complaint and, to date, has not appeared in this case. As a result, the court did not make a determination on the merits of class certification pursuant to CPLR 902. Therefore, this case remained, and still is, in the pre-certification context.
On June 23, 2020, plaintiffs moved, pursuant to CPLR 3215, for leave to enter a default judgment as against defendant VEP Associates (NYSCEF Doc. No. 4). The unopposed motion for default judgment remains pending.
Plaintiffs now move, pursuant to CPLR 908, for an order approving the Proposed Court Ordered Notice of Dismissal and directing its distribution to all putative class. Plaintiffs' motion is granted in part. The proposed manner in which plaintiffs' seek to provide notice to the putative class is insufficient.
Discussion
CPLR 908 provides that "[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court. Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs." CPLR 908's requirements also extend to, and apply in, the pre-certification context (Desrosiers v Perry Ellis Menswear, LLC, 30 N.Y.3d 488 [2017]). Thus, "notice to putative class members of a proposed dismissal, discontinuance, or compromise must be given." (id.)
In this case, plaintiffs contend that posting notice of this case's discontinuance on the NYSCEF docketing system and on plaintiffs' counsel's website satisfies CPLR 908's requirements for providing notice to putative class members (NYSCEF Doc. No. 17). In support, plaintiffs cite to Innvite Hospitality, LLC v. Yellowstone Capital LLC, Index No. 653712/2020. However, plaintiffs' reliance on Innvite Hospitality is misplaced, as that case involved a proposed settlement, rather than a voluntary discontinuance after default judgment as is the case here. Thus, the court directs that this order, and the notice listed below, be provided to all current and former non-exempt hourly paid employees, who worked for defendant in the State of New York from October 5, 2013 through the date of this order, in the following manner:
- Plaintiffs' Counsel's Law Firm Website; Within 10 days of the court's entry of this order on NYSCEF, plaintiffs' counsel shall post this order and the notice to its law firm website, located at: https://www.wagetheftnv.com. The order and notice shall remain posted on the website for at least 4 consecutive weeks, and shall be titled as: "Notice of Dismissal of Class Action Lawsuit Against VEP Associates LLC d/b/a VEP American Fire and Security."
- Newspaper Publication: Within 10 days of the court's entry of this order on NYSCEF, plaintiffs' counsel shall publish this order and the notice in the following newspapers: 1) The New York Times; and 2) The New York Daily News. The order and notice shall remain posted in each of these newspapers for at least 4 consecutive weeks from the first day on which they are published, and shall be titled as: "Notice of Dismissal of Class Action Lawsuit Against VEP Associates LLC d/b/a VEP American Fire and Security."
Furthermore, the notice must bear the following form (as reproduced on the next page):
COURT ORDERED NOTICE OF DISMISSAL OF POTENTIAL CLASS ACTION
TO: All current and former employees who worked for VEP Associates LLC (d/b/a VEP American Fire and Security) in the State of New York during the period of October 5, 2013 through the present (the "Class").
This Notice relates to the dismissal of the above captioned potential class action lawsuit. The facts relating to the dismissal of this action are outlined below. As a potential class member you have the right to be informed of the dismissal.
• This notice has been authorized by the Hon. Melissa A. Crane, J.S.C., and may affect your legal rights. This is not a solicitation from a lawyer.
• Plaintiffs Joseph Monroe and Russell Davila worked for VEP Associates LLC ("Defendant") in New York State and brought this lawsuit on October 4, 2019 on behalf of themselves and other current and former employees who worked for Defendant dating back to October 5, 2013. Plaintiffs allege that they were made to wear a uniform and were not paid uniform maintenance pay, and did not receive hiring notice at their time of hire or any time thereafter.
• Defendant was served with the Summons and Complaint in this matter on October 10, 2019. Defendant has not answered or otherwise responded, and thus, is in default.
• Following publication of this notice for 4 consecutive weeks, the Court will enter an Order dismissing this action as to the Class. The individual claims of Joseph Monroe and Russell Davila are to be resolved separately. The claims of all other potential class members will be dismissed without prejudice. This means that potential class members such as yourself can still file claims against Defendant seeking allegedly unpaid wages to the extent otherwise permitted by law.
• Receipt of this notice does not indicate that you are entitled to receive any monetary recovery. No determination has been made by the Court that you are owed any unpaid wages, and the Court is not endorsing the merits of this lawsuit or the potential defenses.
• For a more detailed statement of the matters involved in this litigation, you may inspect the pleadings, orders entered by the Court, and other papers filed in this litigation at the Office of the Clerk of the Court for the Supreme Court for the State of New York, New York County, 60 Centre Street, New York, NY 10007 during regular business hours of each business day.
• When the Court dismisses this class action lawsuit, any claim you may have for unpaid wages that may have been a part of the lawsuit will no longer be protected and will be dismissed without prejudice. That means that the time you have to file any claim for unpaid wages that you may have against Defendants will continue to expire unless you commence your own action.
• If you have any questions about this lawsuit, or would like further information about this notice, you can contact the Plaintiffs attorneys for more information: Mark Gaylord, Esq. at (516) 742-4949, Bouklas Gaylord LLP, 357 Veterans Memorial Highway, Commack, New York 11725, www.wagetheftny.com.
PLEASE DO NOT CONTACT THE COURT WITH QUESTIONS INVOLVING THIS LAWSUIT
Accordingly, it is
ORDERED that Motion Seq. No. 2 is granted in part; and it is further
ORDERED that plaintiffs' must notify the members of the putative class in accordance with the directives and instructions provided above; and it is further
ORDERED that plaintiffs' must provide proof of compliance with this order, by e-filing on NYSCEF and emailing the court at SFC-Part60@nycourts, gov, by Friday, March 25, 2022; and it is further
ORDERED that a status conference will be held on Wednesday, March 30, 2022 at 4:00 p.m. via Microsoft Teams.