ZOU v. 2953 BROADWAY INC (2023)

Plaintiff Changren Zou moves under CPLR 2004 for an extension of time to file his motion for class certification. Plaintiff's motion is denied.

In 2018, Xing Ye, a prior delivery worker for defendant 2953 Broadway Inc. d/b/a Vine Sushi, filed a federal class action against Vine Sushi and its sole shareholder, Cho Kam Sze, in the U.S. District Court for the Southern District of New York. (See NYSCEF No. 31 [federal complaint].) Ye alleged that Vine Sushi and Sze violated the federal Fair Labor Standards Act and the New York Labor Law by failing to pay him minimum wages and overtime pay, and by failing to comply with recordkeeping and notice requirements. (NYSCEF No. 31 at ¶¶ 1, 20-22.)

On June 3, 2020, the district court (Loretta Preska, J.) granted the branch of Ye's motion seeking to obtain conditional certification of a class of Vine Sushi's delivery workers but denied the branch seeking certification “as to non-delivery workers.” (Xing Ye v 2953 Broadway Inc., 2020 WL 2904070, at *3 [SD NY, June 3, 2020].) In November 2021, the district court ordered defendant Edwin Qiang Xi Sze—the administrator of Cho Kam Sze's estate—to compile a list of all delivery workers employed by Vine Sushi between June 4, 2015, and December 31, 2017. (NYSCEF No. 35 at ¶ 1 [SD NY 2021 Order].) Plaintiff's counsel then notified the workers on the list of their eligibility to option-in to the putative class.

Defendant Sze's list included plaintiff Zou, because he had worked as a deliveryman for defendants from August 1, 2016, to June 5, 2017. (NYSCEF No. 36 at ¶ 7 [list of former delivery workers]; NYSCEF No. 29 at ¶ 5.) Plaintiff chose not to opt in.

On June 6, 2022, plaintiff commenced this action “on behalf of himself and other similarly situated employees,” alleging that defendants violated the New York Labor Law and Hospitality Industry Wage Order. (NYSCEF No. 22 at ¶ 1.) Plaintiff is represented by the same counsel who is litigating the federal class action in the Southern District. On December 6, 2022, plaintiff brought this motion for more time to move for class certification. The motion is denied.

In opposing plaintiff's motion, defendants argue that (i) plaintiff is engaged in improper forum shopping to circumvent adverse rulings in the SDNY action; and (ii) plaintiff fails to demonstrate good cause for his requested extension. (See NYSCEF No. 40 at 1.) This court agrees that plaintiff does not demonstrate good cause, and therefore does not reach defendants’ forum-shopping argument.

Although “class certification is an issue that should be determined promptly ․ a trial court has discretion to extend the deadline upon good cause shown.” (Rodriguez v Metropolitan Cable Communications, 79 AD3d 841, 842 [2d Dept 2010].) Plaintiff claims that his “need to conduct pre-class certification discovery” constitutes good cause. (NYSCEF No. 41 at 6.) This court disagrees.

Pre-class certification discovery is used “to ascertain the dimensions of the group of individuals who share plaintiff's grievance” and to determine whether the requirements under CPLR 901 (a) are met. (Rodriguez, 79 AD3d at 842 [internal quotation marks omitted].) In sum, pre-class “certification disclosure should be limited to ascertaining only those facts which are necessary to support an application for class status.” (Gewanter v Quaker State Oil Ref. Corp., 87 AD2d 970, 970 [4th Dept 1982].) Plaintiff does not show that he needs more time to take pre-class discovery before moving for class certification. He does not identify any obstacle to his using class-related discovery from the federal action—particularly given that plaintiff's counsel here also represents the plaintiffs in that action. Nor does plaintiff identify any information that he needs to move for class certification here beyond the discovery already obtained in the federal action.

Accordingly, it is

ORDERED that plaintiff's motion is denied.

Gerald Lebovits, J.