Opinion
Index No. 651009/2022
01-05-2024
ZHEN MING CHEN, Plaintiff, v. NEW MAY MAY KITCHEN INC, FAMIN NI, YIZHAO NI Defendant.
Unpublished Opinion
PRESENT: HON. RICHARD LATIN Justice.
DECISION + ORDER ON MOTION
RICHARD LATIN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 46, 47, 48, 49, 50, 59, 61 were read on this motion to/for ORDER MAINTAIN CLASS ACTION.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 37, 38, 39, 40, 41, 42, 43, 44, 51, 52, 53, 54, 55, 56, 57, 58, 60 were read on this motion to/for AMEND CAPTION/PLEADINGS.
Upon the foregoing documents, plaintiffs motions for leave to amend the pleadings pursuant to CPLR 3025 (b) and for, inter alia, conditional collective certification is determined as follows:
Plaintiff Zhen Ming Chen used to work as a delivery person at defendants' restaurant, New May May Kitchen, until he was terminated. Thereafter, he commenced the instant action alleging violation of wage laws under the FLSA and NYLL. With these motions, plaintiff seeks to both amend the complaint and for conditional certification of a collective action, among other things.
As to plaintiffs motion pursuant to CPLR 3025, plaintiff seeks leave to serve an amended summons and amended complaint, adding additional defendants, factual detail, and a cause of action. "Leave to amend pleadings under CPLR 3025(b) should be freely given, and denied only if there is 'prejudice or surprise resulting directly from the delay,' or if the proposed amendment 'is palpably improper or insufficient as a matter of law'" (McGhee v Odell, 96 A.D.3d 449, 450 [1st Dept 2012] [internal citations omitted]). Here, although the defendants maintains the amendments will be shown to be factually insufficient, the proposed amendments are not palpably insufficient or devoid of merit, nor at this stage in the litigation is there any prejudice in allowing the plaintiff to amend the pleadings.
Accordingly, it is
ORDERED that the plaintiffs motion for leave to amend the summons and complaint is granted; and it is further
ORDERED that the amended summons and amended complaint, in the form annexed to the motion papers, shall be deemed served upon service of a copy of this order with notice of entry upon all parties who have appeared in the action; and it is further
ORDERED that an amended summons and amended complaint, in the form annexed to the motion papers, shall be served, in accordance with the Civil Practice Law and Rules, upon the parties being added to this action within 30 days after service of a copy of this order with notice of entry; and it is further
ORDERED that the action shall bear the following caption:
ZHEN MING CHEN, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, Plaintiffs,
against
NEW MAY MAY KITCHEN INC, FAMIN NI A/K/A FA MIN NI, XUEFEN DONG A/K/A XUE FEN DONG, AND YIZHAO NI A/K/A YI ZHAO NI A/K/A EDDIE NI, AND ZHONGHUANG YANG A/K/A ZHONG HUANG YANG, Defendants.
And it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being added pursuant hereto; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (www.nycourts.gov/supctmanh).
As to plaintiffs motion for conditional certification of the collective action, plaintiff is required to demonstrate a modest likelihood that the named plaintiff is similarly situated and subject to common violations of the FLSA and NYLL to the other potential plaintiffs (see Iglesias-Mendoza v LaBelle Farm, Inc., 239 FRD 363 [SD NY 2007]; Glatt v Fox Searchlight Pictures, Inc., 811 F.3d 528 [2d Cir 2015]; Hoffmann v Sbarro, Inc., 982 F.Supp. 249 [SD NY 1997]). Here, plaintiff meets this low burden as, even if unsubscribed, defendants' deposition testimony makes evident that all New May May Kitchen, Inc. employees, like plaintiff, worked greater than 40 hours a week but were paid flat salaries without agreement for the particular number of hours the salaries would cover (see Islam v LX Ave. Bagels, Inc., 2019 WL 5198667 [SD NY 2019]). Accordingly, the putative class is conditionally certified pursuant to 29 USC 216.
As a result, defendants New May May Kitchen Inc, Famin Ni, and Yizhao Ni are directed to provide plaintiff with an Excel spreadsheet containing a unique numerical identifier, last name, first name, nickname, last known address, primary language, employment start and end date, and position for each employee of New May May Kitchen after January 5, 2021 within 21 days after service of a copy of this order with notice of entry.
Nevertheless, plaintiffs notice and forms are not approved at this juncture, and the parties are directed to meet and confer and submit proposed documents that include contact information for defendants' counsel, directs potential plaintiffs who opt in to send their opt-in forms to the Clerk of the Court, limits the opt-in period to 60 days with no equitable tolling, clearly allows for potential plaintiffs to opt-in who do not want to be represented by Troy Law, PLLC and does not discourage class members from seeking their own counsel.
Further, once approved, the notice may be published on plaintiffs attorney's website or posted to public social media groups, however, it shall not be posted in the subject restaurant or included in employee's pay envelopes. Additionally, plaintiff is granted conditional leave to amend the complaint to include opt-in plaintiffs claims that file consent to sue forms once they are approved.
This constitutes the decision and order of the Court.