GRIFFIN v. GREGORY COFFEE MANAGEMENT LLC (2021)

Order, Supreme Court, New York County (Kathryn E. Freed), entered on or about June 9, 2020, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the class allegations asserted in plaintiff's amended complaint, unanimously affirmed, with costs.

The order appealed from involves a pre-certification motion to dismiss.  In reviewing these types of motions, this Court has held that it will generally be “premature to dismiss class action allegations before an answer is served or pre-certification discovery has been taken” (Downing v. First Lenox Terrace Assoc., 107 A.D.3d 86, 91, 965 N.Y.S.2d 9 [1st Dept. 2013], affd 24 N.Y.3d 382, 998 N.Y.S.2d 729, 23 N.E.3d 997 [2014]).  A defendant will succeed on a pre-certification motion to dismiss only where it “appears conclusively from the complaint and from the affidavits that there was as a matter of law no basis for class action relief” (id. [internal quotation marks omitted]).  Thus, to succeed on the underlying motion, defendants had the burden of showing “conclusively” that there was no basis for class action relief as a matter of law (id.).

Defendants have not “conclusively” shown that there is no commonality as to the questions of law or fact that relate to the proposed class (id.;  CPLR 901[a][2]).  Among other things, plaintiff alleges that defendants violated Part 146 of the New York Minimum Wage Order because they did not provide their employees with a sufficient number of uniforms for the average days worked per week and/or did not properly reimburse the employees for purchasing uniforms (12 NYCRR § 146–1.7[a]).  Contrary to defendants' assertions, calculating damages under the Wage Order would be relatively straightforward, and not governed by the “subjective” and individualized inquiries that defendants rely upon in support of reversal.  Nor have defendants “conclusively demonstrated” that there is no basis for class action relief when applying the “wash and wear” exception (12 NYCRR § 146–1.7[b]).  The court properly awarded pre-certification discovery rather than dismissing the complaint.

We have considered defendants' remaining contentions, and find them unavailing.