Opinion
INDEX NO. 600159/2016
01-17-2017
FRANK ROBINSON, on behalf of himself and all others similarly situated, and HENRY ALCANTARA, BARRY ALKINS, RAFAEL BOITER, MAURICE DESRIVIERES, JAY GILBERT, ROGER JONES, ROUSSO MEDE, JOSE PERALTA, NIEVE QUEZADA, MAXIMINO ROSA and TYRELL STEWART, individually, Plaintiffs, v. BIG CITY YONKERS, INC. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, KKLDS, INC. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, 20-15 ATLANTIC CORP. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, 450 CONCORD AVENUE CORP, ALL PARTS, INC. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, AUTOSTAR AUTOMOTIVE WAREHOUSE, INC. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, D A L HOLDING CO., INC. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, GLENWOOD AUTOPARTS, CORP. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES and QPBC INC. d/b/a BIG CITY AUTOMOTIVE WAREHOUSES, Defendants.
NYSCEF DOC. NO. 256
SHORT FORM ORDER
PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice Motion Seq. Nos.: 02, 03
Motion Dates: 10/27/16 11/18/16
The following papers have been read on these motions:
| Papers Numbered | |
| Notice of Motion (Seq. No. 02), Affirmation and Exhibits andMemorandum of Law | 1 |
|---|---|
| Affirmation in Opposition to Motion (Seq. No. 02) and Exhibits andMemorandum of Law | 2 |
| Reply Affirmation to Motion (Seq. No. 02) and Exhibits andMemorandum of Law | 3 |
|---|---|
| Notice of Motion (Seq. No. 03), Affirmations and Exhibits andMemorandum of Law | 4 |
| Affirmation in Opposition to Motion (Seq. No. 03) and Exhibits andMemorandum of Law | 5 |
| Reply Affirmation to Motion (Seq. No. 03) and Exhibits andMemorandum of Law | 6 |
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Plaintiffs move (Seq. No. 02) for an order: (1) pursuant to 29 USC § 216(b), conditionally certifying this action as a collective action; (2) authorizing plaintiffs to issue plaintiffs' Proposed Notice of Pendency and Consent to Join forms (the "Notice and Consent") to all individuals who worked for defendants as drivers and were classified as independent contractors since January 11, 2013 (the "Putative Opt-Ins"); (3) authorizing plaintiffs to issue the Notice and Consent by (a) first class U.S. mail, (b) email, and (c) text message; (4) approving plaintiffs' proposed (a) Notice and Consent, (b) email notice, (c) text message notice, and (d) reminder notice; (5) for sixty (60) days after the Notice and Consent are mailed, allowing Putative Opt-Ins to join this matter by either (a) returning a signed consent to Shulman Kessler LLP (together with The Law Office of Anthony A. Capetola, "plaintiffs' counsel") or a third-party administrator hired by plaintiffs' counsel, who shall e-file the signed consent upon receipt, or (b) filing a signed consent, whether filed pro se or filed by another attorney, via e-file or by service on the Clerk of Court; (6) ordering defendants to post a copy of the Notice and Consent at each of the following locations, in a place visible to the drivers working at those locations: (a) Big City New Rochelle, 11 Cliff Street, New Rochelle, New York 10801; (b) Big City Yonkers, 44 Runyon Avenue, Yonkers, New York 10710; (c) Danken Auto, 84 18th Street, Brooklyn, New York 11234; (d) Danken-Autostar, 2130 Bergen Street, Brooklyn, New York 11233; (e) Danken-Williamsburg, 161 Morgan Avenue, Brooklyn, New York 11237; (f) GB500, 5701 Foster Avenue, Brooklyn, New York 11232; (g) General Baitoa-Inwood, 1301 Inwood Avenue, Bronx, New York 10452; (h) General Baitoa-Concord, 145th Street, Bronx, New York 11234; (i) Indy Auto Parts, 10103 Northern Boulevard, Corona, New York 10368; and (j) Queens Plaza, 1306 38th Avenue, Long Island City, New York 11101; (7) within fourteen (14) days of the entry of the order, mandating defendants to provide plaintiffs' counsel with a list, in electronic form, containing the following contact information for each Putative Opt-In: (a) name; (b) last known home address; (c) last known email address; (d) last known mobile phone number; (e) last known home phone number; and (f) start and end dates of employment; (8) requiring defendants to provide plaintiffs' counsel with the social security numbers of any Putative Opt-In whose Notice and Consent form is returned as undeliverable and without a forwarding address by the U.S. Postal Service. Such information shall be provided within seven (7) calendar days after plaintiffs' counsel notifies defendants' counsel, Reed Smith LLP, of such undeliverable notices. These social security numbers shall be used by plaintiffs' counsel to conduct a records search for such Putative Opt-Ins' current address, so that plaintiffs' counsel can reissue the Notice and Consent by U.S. first class mail; (9) mandating plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel, to issue the Notice and Consent within ten (10) days after receiving the list of Putative Opt-Ins' contact information; and (10) requiring plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel, to issue the proposed reminder notice via first class mail and email thirty (30) days after the Notice and Consent are mailed. Defendants oppose the motion.
Plaintiffs also move (Seq. No. 03) for an order: (1) pursuant to Article 9 of the CPLR, certifying this action as a class action; (2) defining the class to include all drivers who Worked for defendants and were classified as independent contractors since January 11, 2010 (the "Class Members"); (3) appointing plaintiffs' counsel as class counsel; (4) authorizing plaintiffs' counsel to issue plaintiffs' Proposed Notice of Class Action Lawsuit (the "Class Notice") to the Class Members; (5) authorizing issuance of the Class Notice to Class Members by (a) first class U.S. mail, (b) email, and (c) text message; (6) approving the form and content of plaintiffs' proposed (a) Class Notice, (b) email notice, and (c) text message notice, all of which are attached to the Affirmation of Troy L. Kessler; (7) permitting sixty (60) days from the date on which the Class Notice is circulated for Class Members to opt-out of the Class by returning a signed statement to plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel; (8) directing that within fourteen (14) days of the entry of the order, defendants shall provide plaintiffs' counsel with a list, in electronic form, containing the following contact information for each Class Member: (a) name; (b) last known home address; (c) last known email address; (d) last known mobile phone number; (e) last known home phone number; and (f) start and end dates of employment; (9) plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel, shall issue the Class Notice within ten (10) days after receiving the list of Class Members' contact information; and (10) defendants shall provide the social security numbers of any Class Member whose Class Notice is returned as undeliverable and without a forwarding address by the U.S. Postal Service. Such information shall be provided within seven (7) calendar days after plaintiffs' counsel notifies defendants' counsel, Reed Smith LLP, of such undeliverable notices. These social security numbers shall be used by plaintiffs' counsel to conduct a records search for such Class Member's current address, so that plaintiffs' counsel can reissue the Class Notice by first class U.S. mail. Defendants oppose the motion.
Plaintiffs commenced this action with the electronic filing of a Summons and Class and Collective Action Complaint on January 11, 2016. Issue was joined with an Answer which was filed on March 9, 2016. Plaintiffs thereafter moved (Seq. No. 01) for leave to amend their Complaint to add defendants to this action. That motion was withdrawn when counsel for the parties entered into a stipulation allowing plaintiffs to amend their Complaint to add 450 Concord Avenue Corp., All Parts, Inc., Autostar Automotive Warehouses, Inc., Glenwood Autoparts, Corp., D A L Holding Co. and QPBC, Inc., as defendants in this matter. That stipulations was "So Ordered" by this Court on September 8, 2016.
On September 28, 2016, plaintiffs filed their First Amended Class and Collective Action Complaint, which alleges that plaintiffs worked for defendants as delivery drivers and were misclassified by defendants as exempt employees and independent contractors. The first cause of action in the First Amended Class and Collective Action Complaint seeks overtime wages, pursuant to the Fair Labor Standards Act ("FLSA"). The second cause of action seeks unpaid overtime, pursuant to the New York Labor Law ("NYLL"). The third cause of action is for failure to pay minimum wage, pursuant to the FLSA. The fourth cause of action is for failure to pay minimum wage, pursuant to the NYLL. The fifth cause of action is for unlawful wage deduction, pursuant to the NYLL. The sixth cause of action is for violation of notice and record-keeping requirements under the NYLL. Defendants filed an Answer to plaintiffs' First Amended Class and Collective Action Complaint on September 27, 2016.
On March 8, 2016, another group of delivery drivers commenced an action in the United States District Court for the Eastern District of New York (Cando, et. al. v. Big City Yonkers, Inc., et al., Case No. 16-CV-1154) advancing virtually identical claims. It appears that the federal action has been settled in principle. However, a motion by plaintiffs in the federal action for preliminary approval of the settlement, as well as a motion by plaintiffs in this action to intervene in the federal action are pending. Defendants' motion (Seq. No. 04) for an order staying the instant action until final determination of the federal action was denied by Decision and Order of this Court dated November 29, 2016. On January 5, 2017, defendants filed a Notice of Appeal from that Decision and Order.
Pursuant to a stipulation dated May 18, 2016, counsel for the parties agreed to participate in limited pre-mediation discovery. However, the mediation was unsuccessful. In this Court's Decision and Order dated November 29, 2016, the parties were directed to appear for a Preliminary Conference on January 11, 2017 to schedule all discovery proceedings. However, that conference was adjourned to March 13, 2017.
With regard to plaintiffs' motion (Seq. No. 02) for conditional certification of this matter as a collective action, the FLSA provides, in relevant part, that an employee may sue on behalf of himself and all other employees who are similarly situated, who may "opt in" to the litigation by filing a written consent form with the Court (29 USC § 216(b)). If employees are determined by the Court to be sufficiently similarly situated, notice of the action may be sent to potential opt-ins. The named plaintiffs' burden for demonstrating that potential plaintiffs are similarly situated is lenient and only requires a modest factual showing sufficient to demonstrate that the named plaintiffs and the potential opt-in plaintiffs were, victims of a common policy or plan that violated the FLSA. See Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363 (SD NY 2007).
The named plaintiffs and the proposed opt-ins are all current or former delivery drivers at defendants' auto parts warehouses. The affidavits of the named plaintiffs submitted in support of their motion for conditional certification sufficiently demonstrate that they and the proposed opt-ins were all subjected to the same policy of being classified by defendants as independent contractors. Plaintiffs further allege that, as a result of this purported misclassification, both they and the proposed opt-ins were denied overtime wages while working over forty (40) hours a week and forced to incur the cost of doing business, which drove their wages below the statutory minimum wage.
In determining whether potential opt-in plaintiffs may be similarly situated, the court does not weigh the merits of the underlying claims. See Lynch v. United Servs. Auto. Assn., 491 F. Supp 2d 357 (SD NY 2007); Zeledon v. Dimi Gyro LLC, 2016 WL 6561404, 2016 US Dist. LEXIS 150526 (SD NY 2016). Therefore, the propriety of defendants' classification of plaintiffs and the proposed opt-ins as independent contractors is not the proper subject of this motion. Moreover, discovery is neither warranted, nor appropriate, at this stage of this action. See Bijoux v. Amerigroup New York, LLC, 2015 WL 4505835, 2015 US Dist. LEXIS 96442 (ED NY 2015).
Defendants' unsubstantiated protestations to the contrary, plaintiffs have satisfied their minimal burden of showing that they are similarly situated to the proposed opt-ins. Conditional certification of this action as a collective action is therefore granted and notice should be sent to the proposed opt-ins.
The FLSA has a two-year statute of limitations, except in the case of willful violations, which have a three-year statute of limitations. See 29 USC § 255(a). The statute of limitations runs for each individual plaintiff until the individual opts into the action. See 29 USC § 256. Therefore, notice of a collective action is generally given to those employed within three (3) years of the date of the mailing of the notice. However, there is authority for permitting notice to those employed within three (3) years of the filing of the Complaint, with any challenges to the timeliness of an individual plaintiffs claim to be determined later if necessary. See Raimundi v. Astellas U.S. LLC, 2011 WL 5117030, 2011 US Dist. LEXIS 124484 (SD NY 2011); Slamna v. API Restaurant Corp., 2013 WL 3340290, 2013 US Dist. LEXIS 93176 (SD NY 2013); Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106 (SD NY 2015). While defendants object to plaintiffs' request that the notice period run from the date of the filing of plaintiffs' Complaint rather than the date of this order, the notice period sought by plaintiffs is warranted given the delay incurred by the parties while they conducted pre-mediation discovery, as well the delay incurred by defendants' motion (Seq. No. 04) to stay this action.
Defendants object to the contents of plaintiffs' proposed notice on the ground that it does not limit the proposed opt-ins to those delivery drivers who were engaged by defendants as independent contractors. Defendants further object that the notice is not neutral because it does not identify defendants' counsel. Plaintiffs have modified their proposed notice to accommodate these objections by defendants (see Plaintiffs' Reply Affirmation Exhibit 49) and that revised notice ("Revised Notice") is approved.
Defendants further object to providing the telephone numbers and email addresses of their drivers to plaintiffs' counsel. Disclosure of such information to plaintiffs' counsel for purposes of giving notice of this action is appropriate. See Racey v. Jay-Jay Cabaret, Inc., 2016 WL 3020933, 2016 US Dist. LEXIS 67879 (SD NY 2016). However, plaintiffs' counsel are admonished that such information is to be used only as directed by this order and for no other purpose.
Defendants' objection to plaintiffs' request that the notice be posted is without merit as such permission is commonly granted even when notice is also mailed. Moreover, despite defendants' objection, allowing the opt-in plaintiffs the option of submitting their consent form to either plaintiffs' counsel or the Clerk of the Court is appropriate. See Dilonez v. Fox Linen Service Inc., 35 F.Supp 3d 247 (ED NY 2014).
With regard to plaintiffs' motion (Seq. No. 03) for class certification, the proponent of a class action has the initial burden of establishing the prerequisites of class-action certification. See Cooper v. Sleepy's, LLC, 120 A.D.3d 742, 992 N.Y.S.2d 95 (2d Dept. 2014); Osarczuk v. Associated Univs., Inc., 82 A.D.3d 853, 918N.Y.S.2d 538 (2d Dept. 2011); Emilio v. Robison Oil Corp., 63 A.D.3d 667, 880 N.Y.S.2d 177 (2d Dept. 2009). CPLR Article 9 is to be liberally construed and the determination as to whether, to grant class certification rests in the discretion of the trial court. See Beller v. William Penn Life Ins. Co. of N.Y., 37 A.D.3d 747, 830 N.Y.S.2d 759 (2d Dept. 2007).
While it is appropriate on a motion for class certification to consider whether plaintiffs' claims have merit, this inquiry is limited to whether on the surface there appears to be a cause of action which is not a sham. See Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 904 N.Y.S.2d 372 (1st Dept. 2010). Defendants argue that the claims which form the basis for plaintiffs' proposed class action are without merit because the delivery drivers who constitute the proposed class were properly classified as independent contractors. Defendants rely on Sanabria v. Aguero-Borges, 117 A.D.3d 1024, 986 N.Y.S.2d 553 (2d Dept. 2014), which held that a driver engaged by one of the defendants was an independent contractor for purposes of determining tort liability in a motor vehicle accident case. The Court in that case did not pass upon whether the delivery driver involved would have been considered an independent contractor for purposes of a Labor Law wage violation. While the holding in Sanabria v. Aguero-Borges, supra, may ultimately be somewhat instructive to this Court on a future motion for summary judgment in this action, at this juncture, the allegations set forth by plaintiffs in their supporting affidavits are sufficient to demonstrate at least a plausible basis for their claim that they were improperly classified as independent contractors.
The prerequisites to a class action are contained in CPLR § 901(a), which provides that:
"One or more members of a class may sue or be sued as representative parties on behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Once the prerequisites under CPLR § 901(a) have been satisfied, the Court must consider the factors set forth in CPLR § 902:
"1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
2. The impracticability or inefficiency of prosecuting or defending separate actions;
3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum;
5. The difficulties likely to be encountered in the management of a class action."
The affidavits submitted by the named plaintiffs in support of their motion for class certification sufficiently demonstrate that plaintiffs meet the specific requirements of numerosity, commonality, typicality, adequacy and superiority set forth in CPLR § 901(a). Common issues of law and fact as to whether over an estimated one hundred (100) drivers were properly classified as independent contractors by defendants predominate and any minor differences in each individual class member's claims do not defeat typicality. See Williams v. Air Serv Corp., 121 A.D.3d 441, 994 N.Y.S.2d 571 (1st Dept. 2014). Moreover, the affirmation of plaintiffs' counsel establishes the ability of the lead plaintiff to adequately represent the interests of the proposed class as required by CPLR § 901(a)(4). Finally, plaintiffs have satisfied the superiority requirement of CPLR § 901(a)(5) by demonstrating that a class action will be the most efficient method for handling the claims of the similarly situated putative class members, despite the availability of other remedies. See Nawrocki v. Proto Constr. & Dev. Corp., 82 A.D.3d 534, 919 N.Y.S.2d 11 (1st Dept. 2011).
In meeting the prerequisites of CPLR § 901(a), plaintiffs have also satisfied the factors set forth in CPLR § 902 and defendants have failed to offer any persuasive argument to the contrary.
Based upon the foregoing, it is hereby
ORDERED that plaintiffs' motion (Seq. No. 02) for conditional certification of this matter as a collective action is GRANTED to the extent that: (1) this action is conditionally certified as a collective action; (2) plaintiffs are authorized to issue plaintiffs' Revised Notice and Consent forms to all individuals who worked for defendants as drivers and were classified as independent contractors since January 11, 2013; (3) plaintiffs are authorized to issue the Revised Notice and Consent by (a) first class U.S. mail, (b) email, and (c) text message; (4) plaintiffs' proposed (a) Revised Notice and Consent, (b) email notice, (c) text message notice, and (d) reminder notice are approved; (5) for sixty (60) days after the Revised Notice and Consent are mailed, Putative Opt-Ins are allowed to join this matter by either (a) returning a signed consent to plaintiffs' counsel or a third-party administrator hired by plaintiffs' counsel, who shall e-file the signed consent upon receipt, or (b) filing a signed consent, whether filed pro se or filed by another attorney, via e-file or by service on the Clerk of the Court; (6) defendants are ordered to post a copy of the Revised Notice and Consent at each of the following locations, in a place visible to the drivers working at those locations: (a) Big City New Rochelle, 11 Cliff Street, New Rochelle, New York 10801; (b) Big City Yonkers, 44 Runyon Avenue, Yonkers, New York 10710; (c) Danken Auto, 84 18th Street, Brooklyn, New York 11234; (d) Danken-Auto star, 2130 Bergen Street, Brooklyn, New York 11233; (e) Danken-Williamsburg, 161 Morgan Avenue, Brooklyn, New York 11237; (f) GB500, 5701 Foster Avenue, Brooklyn, New York 11232; (g) General Baitoa-Inwood, 1301 Inwood Avenue, Bronx, New York 10452; (h) General Baitoa-Concord, 145th Street, Bronx, New York 11234; (i) Indy Auto Parts, 1010.3 Northern Boulevard, Corona, New York 10368; and (j) Queens Plaza, 1306 38th Avenue, Long Island City, New York 11101; (7) within fourteen (14) days of the entry of this order, defendants must provide plaintiffs' counsel with a list, in electronic form, containing the following contact information for each Putative Opt-In: (a) name; (b) last known home address; (c) last known email address; (d) last known mobile phone number; (e) last known home phone number; and (f) start and end dates of employment; (8) defendants must provide plaintiffs' counsel with the social security numbers of any Putative Opt-In whose Revised Notice and Consent form is returned as undeliverable and without a forwarding address by the U.S. Postal Service. Such information shall be provided within seven (7) calendar days after plaintiffs' counsel notifies defendants' counsel, Reed Smith LLP, of such undeliverable notices. These social security numbers shall only be used by plaintiffs' counsel to conduct a records search for such Putative Opt-Ins' current address, so that plaintiffs' counsel can reissue the Revised Notice and Consent by U.S. first class mail; (9) plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel, must issue the Revised Notice and Consent within ten (10) days after receiving the list of Putative Opt-Ins' contact information; and (10) plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel, must issue the proposed reminder notice via first class mail and email thirty (30) days after the Revised Notice and Consent are mailed; and it is further
ORDERED that plaintiffs' motion (Seq. No. 03) for class certification is GRANTED to the extent that: (1) this action is certified as a class action, pursuant to Article 9 of the CPLR; (2) the class is defined to include all drivers who worked for defendants and were classified as independent contractors since January 11, 2010; (3) plaintiffs' counsel is appointed as class counsel; (4) plaintiffs' counsel is authorized to issue plaintiffs' Proposed Notice of Class Action Lawsuit to the Class Members; (5) the Class Notice to Class Members shall be issued by (a) first class U.S. mail, (b) email, and (c) text message; (6) the form and content of plaintiffs' proposed (a) Class Notice, (b) email notice, and (c) text message notice, all of which are attached to the Affirmation of Troy L. Kessler, is approved; (7) sixty (60) days from the date on which the Class Notice is circulated Class Members are permitted to opt-out of the Class by returning a signed statement to plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel; (8) within fourteen (14) days of the entry of the order, defendants shall provide plaintiffs counsel with a list, in electronic form, containing the following contact information for each Class Member: (a) name; (b) last known home address; (c) last known email address; (d) last known mobile phone number; (e) last known home phone number; and (f) start and end dates of employment; (9) plaintiffs' counsel, or a third-party administrator hired by plaintiffs' counsel, shall issue the Class Notice within ten (10) days after receiving the list of Class Members' contact information; and (10) defendants shall provide the social security numbers of any Class Member whose Class Notice is returned as undeliverable and without a forwarding address by the U.S. Postal Service. Such information shall be provided within seven (7) calendar days after plaintiffs' counsel notifies defendants' counsel, Reed Smith LLP, of such undeliverable notices. These social security numbers shall only be used by plaintiffs' counsel to conduct a records search for such Class Member's current address, so that plaintiffs' counsel can reissue the Class Notice by first class U.S. mail, and it is further
ORDERED that the information obtained by plaintiffs' counsel from defendants' counsel regarding the potential Opt-Ins and Class Members including: (a) name; (b) last known home address; (c) last known email address; (d) last known mobile phone number; (e) last known home phone number; (f) start and end dates of employment; and (g) social security number, shall be confidential and not used for any purpose other than the litigation and/or settlement of this action, and it is further
ORDERED that the parties shall appear for a Preliminary Conference on March 13, 2017, at 9:30 a.m., at the Preliminary Conference Desk in the lower level of 100 Supreme Court Drive, Mineola, New York, to schedule all discovery proceedings. A copy of this Order shall be served on all parties and on the DCM Case Coordinator. There will be no adjournments, except by formal application pursuant to 22 NYCRR § 125.
This constitutes the Decision and Order of this Court.
ENTER:
/s/ _________
DENISE L. SHER, A.J.S.C. Dated: Mineola, New York
January 17, 2017