Luis Alfaro, et al., Plaintiff-Respondents, v. Vardaris Tech, Inc., etc., et al., Defendants-Appellants, John Doe Bonding Company, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Luis Alfaro, et al., Plaintiff-Respondents, v. Vardaris Tech, Inc., etc., et al., Defendants-Appellants, John Doe Bonding Company, Defendant.

1953

Decided: January 07, 2010

Mazzarelli, J.P., Friedman, Nardelli, Renwick, Román, JJ. Thomas D. Czik, Roslyn, for Vardaris Tech, Inc. and Elias Rizo, appellants.   McElroy, Deutsch, Mullvaney & Carpenter, LLP, New York (Adam R. Schwartz of counsel), for National Grange Mutual Insurance Company, appellant.   Virginia & Ambinder, LLP, New York (James Emmet Murphy of counsel), for respondents.

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 16, 2009, which, to the extent appealed from, denied the cross motions by defendants Vardaris Tech/Rizo and National Grange for partial summary judgment to enforce the opt-out letters of class members, vacated the opt-out letters and affidavits of workers, and made certain findings of unrefuted facts, unanimously modified, on the law, the factual findings vacated, and otherwise affirmed, without costs.

The court did not abuse its discretion in denying partial summary judgment seeking to enforce the opt-out letters and in vacating the opt-out letters in light of the record evidence, which resulted in the inescapable inference that defendants drafted the letters and affidavits, and sent them to potential class members for the purpose of soliciting them to exclude themselves from the class (see Kleiner v First Natl. Bank of Atlanta, 751 F.2d 1193, 1202-1203 [11th Cir1985];  Wang v. Chinese Daily News, 236 FRD 485, 487-489 [CD Cal 2006];  Impervious Paint Indus. v. Ashland Oil, 508 F Supp 720 [WD Ky 1981], appeal dismissed 659 F.2d 1081 [6 th Cir1981] ).

In the section of the order entitled “Unrefuted Facts,” the court made, among other things, the following factual findings:  (1) the Quick Report for Guzman reflected the hours he worked;  (2) the Payroll Reports under-reported the number of hours Guzman actually worked, and overstated the amount he was paid;  (3) Vardaris never paid Guzman in cash or in any other manner to make up the difference between what they said they paid him on the Payroll Reports and what his paychecks and the Quick Reports reflected;  and (4) the Payroll Reports, as compared to the Quick Reports, also demonstrated underpayments to some additional workers.   These factual findings, made pursuant to CPLR 3212(g), aggrieved defendants and thus gave them standing to appeal (cf.   Buller v. Giorno, 40 AD3d 316 [2007] ).   The court erred in making these factual findings because the record evidence reveals that issues of fact remain with respect to each of them.

M-5517 Luis Alfaro, et al. v. Vardaris Tech, Inc., etc.,

et al.

Motion seeking stay denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK