Opinion
Index No. 653631/2021 MOTION Seq. No. 001
05-15-2023
KIT MAN CATHERE LAW, AHN QUAN TRUONG, and LINH YEN DUONG, on behalf of themselves and others similarly situated, Plaintiffs, v. KONG KEE FOOD CORP, d/b/a Kong Kee Food; and KONG KEE HOLDING CORP, d/b/a Kong Kee Food, 212 GRAND FOOD CORP, d/b/a Kong Kee Food IP WING KONG, and YUK LAU LEUNG, Defendants
Unpublished Opinion
PRESENT: HON. VERNA L. SAUNDERS, JSC Justice.
DECISION + ORDER ON MOTION
HON. VERNA L. SAUNDERS, JSC.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34 were read on this motion to/for EXTEND TIME .
Plaintiffs, on behalf of themselves and others similarly situated (all non-exempt employees), who worked for defendants on or after six years before the filing of the complaint in this case, seek to recover unpaid wages, including unpaid minimum wages, illegal tip deductions, wage notice violations, and unpaid overtime compensation for work performed in excess of forty (40) hours at defendants' businesses. (NYSCEF Doc. No. lat ¶50, 51, summons and complaint). The business defendants are Kong Kee Food Corp., a tofu factory located at 48-31 Vandam Street, Long Island City, New York 11101; Kong Kee Holding Corp., a domestic business corporation organized under the laws of the State of New York with a principal address at 48-31 Vandam Street, Long Island City, New York 11101: and 212 Grand Food Corp., a neighborhood grocery store located at 212 Grand Street New York, New York, 10002. (Id. at ¶10-12.) Ip Wing Kong and Yuk Lau Leung are individual, non-corporate defendants. Plaintiffs, former day shift packers employed at Kong Kee Food Corp., allege that Ip Wing Kong ("Wing Kong") was the owner of these business defendants and along with Yuet Tong Lam("Lam"), and that Wong and Lam (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employee records at said businesses (Id. at 14-19).
Defendant Kong Kee Holding Corp, is currently inactive.
The court notes that defendant Yuet Tong Lam is here mistakenly sued as Yuk Lau Leung. For the purposes of this motion, defendant Yuk Lau Leung will be referred herein as Yuet Tong Lam.
Defendants answered the complaint denying all allegations except that caption plaintiffs were once employed by defendant Kong Kee Holding Corp and that they were paid the statutory minimum wage during the relevant times.
Plaintiffs now move, pursuant to CPLR 2004, to extend their time to (1) complete preclass certification discovery and (2) to move for class certification. (NYSCEF Doc. No. 16, notice of motion).
Defendants cross-motion, requesting (a) the preservation of defendants' priority of discovery and that; (b) plaintiffs' pre-certification discovery motion be limited to the purpose of ascertaining the dimensions/numerosity and/or existence of the alleged class of employees who share plaintiffs' grievance and denying and/or restricting plaintiffs' pre-certification motion discovery of documents concerning Kong Kee Food Corp, employees generally, employees who were paid at or above the hourly minimum wage, and employees who worked overtime hours. (NYSCEF Doc. No. 26, notice of cross-motion).
Plaintiffs oppose defendants' cross-motion on the basis that the class should encompass all workers who were employed by defendants because defendants operate as a single enterprise. Plaintiffs further argue that the individual defendants manage and operate corporate defendants and act as board of directors of same. Thus, plaintiffs maintain that since there were alleged widespread payment violations as to all workers employed by defendants, they should be entitled to contact all employees, not just day shift packers employed at Kong Kee Food Corp., that have worked with defendants for the six consecutive years before the complaint was filed. (NYSCEF Doc. No. 31, memo in opposition, pg. 4.)
This court notes that defendants replied to plaintiffs' opposition to the cross-motion. However, as defendants' sur-reply is not allowed as of right in the CPLR and, thus, shall not be considered when disposing of the instant motion, (see 584 Broadway, LLC v Untitled World, LLC, 2022 NY Slip Op 34123[U] *7 [Sup Ct, NY County 2022]).
"The purpose of pre-class certification discovery is to ascertain the dimensions of the group of individuals who share plaintiffs grievance" (Smith v. Atlas Inti. Tours, 80 A.D.2d 762, 764 [1st Dept 1981].) "At the pre-class certification stage, a plaintiff is entitled to'limited discovery to determine whether the prerequisites to class certification listed in CPLR 901 are present, and to assess the feasibility considerations listed in CPLR 902 in relation to the particular facts'" (Troshin v Stella Orton Home Care Agency, Inc., 2018 NY Slip Op 30922[U]**7 [Sup Ct, NY County 2018], quoting Chimenti v Am. Express Co., 97 A.D.2d 351, 352 [1st Dept 1983].) "CPLR 902 states that a class action can only be maintained if the prerequisites promulgated by CPLR 901(a) are met." (Pludeman v N. Leasing Sys., Inc., 74 A.D.3d 420, 421 [1st Dept 2010], citing Weinberg v Hertz Corp., 116 A.D.2d 1,4 [1st Dept 1986], affd 69 N.Y.2d 979 [1987].) "Those prerequisites are (1) that the class is so numerous that joinder of all members is impracticable (numerosity); (2) questions of law or fact common to the class predominate over questions of law or fact affecting individual class members (commonality); (3) the claims or defenses of the class representatives are typical of those in the class (typicality); (4) the class representatives will fairly and adequately protect the interests of the class [(adequacy of representation)]; and (5) a class action represents the superior method of adjudicating the controversy (superiority)" (Pludeman v N. Leasing Sys., Inc., 74 A.D.3d at 421422; see City of NY v Maul, 14 N.Y.3d 499, 508 [2010]; Dugan v London Terrace Gardens, L.P., 186 A.D.3d 12, 19 [1st Dept 2020].) However, it is well-settled that CPLR 901(a) "'should be broadly construed' and that 'the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it'" (Stecko v RLI Ins. Co., 121 A.D.3d 542, 543-544 [1st Dept 2014], quoting City of New York v Maul, 14 N.Y.3d at 509.) The singleemployer doctrine and its four-factor test determines whether intertwined entities should be treated as a single employer in a labor dispute. (Batilo v Mary Manning Walsh Nursing Home Co., Inc., 140 A.D.3d 637, 638 [1st Dept 2016].) The four-factor test analyzes (1) interrelation of operations, (2) centralized control of labor operations, (3) common management, and (4) common ownership, but the primary focus is on the second factor of centralized control of labor operations. (Id.)
CPLR 3101 [a] which governs disclosure in civil actions directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Courts have emphasized that "[t]he words, 'material and necessary', are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Forman v Henkin, 30 N.Y.3d 656, 661 [2018].)
Here, this court finds that plaintiff has sufficiently established all the requirements for class certification under CPLR 901 and 902. Plaintiffs provided an affidavit that lists people who were similarly situated and who may have experienced violations like those alleged in the complaint, for they sufficiently allege that, upon information and belief, such violations also occurred in defendants' other workplaces. The discovery plaintiffs seek in this pre-certification effort is relevant and necessary to ascertain the bounds of the putative class as a whole, (see Gibbs v Kings Harbor Health Servs., LLC, 190 A.D.3d 586, 587 [1st Dept 2021]). As noted by the Court of Appeal, where, as here, plaintiffs allegation suggests a policy or practice of the unlawful type, such is ripe for class treatment, (see Andryeyeva v NY Health Care, Inc., 33 N.Y.3d 152, 184 [2019].) Furthermore, defendants concede in their verified answer that the individual defendants are involved in some part of the management of one or more of the corporate defendants. Specifically, defendant Kong is a 100% shareholder of the corporate defendants and was involved in hiring plaintiffs. (Answer at ¶l 3-17). Defendants do not sufficiently rebut the claim that there is a centralized control of labor operations, except to say that plaintiffs worked only at the Kong Kee Food Corp, factory location in Long Island City throughout their alleged periods of employment. Defendants insist that, since plaintiffs were not employed at the 212 Grand Food Corp, store in Chinatown, they are not entitled to precertification discovery concerning the employees working at the 212 Grand Street store. Defendants further maintain that employees working at the 212 Grand Street store do not share the same employer and do not share the same grievance as plaintiffs. This court, however, finds that, at this stage in the litigation, before pre-certification discovery, "it is premature for defendant[s] to argue that plaintiffs' lack of commonality precludes a class action" (Troshin, 2018 NY Slip Op 30922[U] at **7.)
Turning next to defendants' request for priority of deposition, "[a]s a general rule, in the absence of 'special circumstances', priority of examination belongs to the defendant if a notice therefor is served within the time to answer; otherwise, priority belongs to the party who first serves a notice of examination" (Bucci v Lydon, 116 A.2d 520, 521 [1st Dept 1986].) "CPLR 3106[a] impliedly mandates that the party who first notices the deposition obtains priority." (Rapillo v St. Barnabas Hospital, 93 A.D.2d 760, 760 [1st Dept 1983].) Here, defendants served demands for discovery, production of documents, written interrogatories, and notices of deposition upon plaintiffs on September 27, 2021, and on November 1, 2021, plaintiffs agreed to serve their discovery and interrogatory responses on or prior to November 15, 2021. (NYSCEF Doc. No. 27, email exchange). Plaintiffs do not address defendants' request for priority of deposition in their affirmation in opposition to defendants' cross-motion and in support of plaintiffs motion. Hence, that branch of defendants' motion seeking priority of discovery is granted. All other arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby
ORDERED that plaintiffs' motion for an extension of time to (1) complete pre-class certification discovery and (2) to move for class certification is granted in its entirety; and it is further
ORDERED that that branch of defendants' cross-motion for priority of discovery, written interrogatories, and depositions of plaintiffs is granted, and it is otherwise denied; and it is further
ORDERED that within twenty (20) days after this decision and order is uploaded to NYSCEF, counsel for plaintiff shall serve a copy of this decision and order, with notice of entry, upon defendants; and it is further
ORDERED that the parties are directed to appear for a remote conference on June 21, 2023, details of which shall be provided no later than June 20, 2023.
This constitutes the decision and order of this court.