MCMILLAN v. LLC (2025)

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about July 4, 2025, which, to the extent appealed from, denied defendant Elecnor Hawkeye, LLC's motion for leave to renew its opposition to plaintiffs’ motion for class certification, unanimously affirmed, with costs.

Supreme Court properly denied defendant Elecnor's motion to renew.  Defendant's argument that Supreme Court erred in not considering Van Osten v. HuiCatao Corp., 2024 N.Y. Misc. LEXIS 5464, *1–6 (Sup. Ct., Queens County, Feb. 9, 2024, No. 709785/2022) is without merit.  Van Osten is a non-binding decision issued 10 days after Supreme Court granted class certification to plaintiffs, which did not constitute a change in the law, and which is also factually inapplicable to the case here.  Plaintiffs’ failure to exhaust their administrative remedies under the Labor Law is not applicable at the class certification stage and therefore is not a reason to deny a motion for class certification (see Idahosa v. MFM Contr. Corp., 239 A.D.3d 536, 537, 239 N.Y.S.3d 4 [1st Dept. 2025];  see also Stanton v. Dragonetti Bros. Landscaping Nursery & Florist Inc., 238 A.D.3d 578, 578, 232 N.Y.S.3d 145 [1st Dept. 2025]).  Moreover, substantive fairness was not defeated by Supreme Court's order because it was consistent with precedent in this Department (see Idahosa, 239 A.D.3d at 537, 239 N.Y.S.3d 4;  Stanton, 238 A.D.3d at 578, 232 N.Y.S.3d 145).

Elecnor asserts that it did not waive its right to assert plaintiffs’ failure to exhaust administrative remedies as an affirmative defense.  However, this issue was not determined by Supreme Court and thus, the issue is not ripe for adjudication.