| Desrosiers v Perry Ellis Menswear, LLC |
| 2016 NY Slip Op 03681 [139 AD3d 473] |
| May 10, 2016 |
| Appellate Division, First Department |
[*1]
| Geoffrey Desrosiers, Individually and on Behalf ofOther Persons Similarly Situated, Appellant, v Perry Ellis Menswear, LLC, etal., Respondents. |
Virginia & Ambinder, LLP, New York (Jack L. Newhouse of counsel), forappellant.
Bluerock Legal, P.A., Miami, Florida (Frank Henry of the bar of the State ofVirginia and the State of Florida, admitted pro hac vice, of counsel), forrespondents.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), enteredNovember 13, 2015, which, insofar as appealed from, denied plaintiff's cross motion tonotify the putative class of the discontinuance of the instant action, pursuant to CPLR908, unanimously reversed, on the law, without costs, and the matter remanded to thecourt to fashion an appropriate notification under the statute.
Although the time in which to seek class certification had expired pursuant to CPLR902 by the time defendants sought discontinuance of this case based on the settlement,the court improperly denied plaintiff's application to send CPLR 908 notice to theputative class members. CPLR 908 reads as follows: "A class action shall not bedismissed, discontinued, or compromised without the approval of the court. Notice of theproposed dismissal, discontinuance, or compromise shall be given to all members of theclass in such manner as the court directs." "In American Pipe & Constr. Co. vUtah (414 US 538, 553 [1974]), the United States Supreme Court held that, underthe federal class action rule, commencement of a class action suit tolls the running of thestatute of limitations for all purported members of the class who make timely motions tointervene after the court has found the suit inappropriate for class action status. NewYork courts have adopted this rule" (Osarczuk v Associated Univs., Inc., 130 AD3d 592, 595[2d Dept 2015], lv dismissed 26 NY3d 1126 [2016]; see also Paru v Mutual of Am. LifeIns. Co., 52 AD3d 346, 348 [1st Dept 2008]; Yollin v Holland Am.Cruises, 97 AD2d 720 [1st Dept 1983]; American Pipe & Constr. Co. vUtah, 414 US 538, 551-554 [1974]). Thus, the putative class retains an interest in theaction, and CPLR 908 is not rendered inoperable simply because the time for theindividual plaintiff to move for class certification has expired. Notice to the [*2]putative class members of the compromise in the instantcase is particularly important under the present circumstances, where the limitationsperiod could run on the putative class members' cases following discontinuance of theindividual plaintiff's action. Concur—Friedman, J.P., Acosta, Moskowitz,Kapnick and Gesmer, JJ.