Geoffrey Desrosiers, etc., Plaintiffs–Appellants, v. LLC

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Supreme Court, Appellate Division, First Department.

Geoffrey Desrosiers, etc., Plaintiffs–Appellants, v. Perry Ellis Menswear, LLC, et al., Defendants–Respondents.


Decided: May 10, 2016

Friedman, J.P., Acosta, Moskowitz, Kapnick, Gesmer, JJ. Virginia & Ambinder, LLP, New York (Jack L. Newhouse of counsel), for appellants. Bluerock Legal, P.A., Miami, Florida (Frank Henry of the bar of the State of Virginia and the State of Florida, admitted pro hac vice, of counsel), for respondents.


Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 13, 2015, which, insofar as appealed from, denied plaintiff's cross motion to notify the putative class of the discontinuance of the instant action, pursuant to CPLR 908, unanimously reversed, on the law, without costs, and the matter remanded to the court to fashion an appropriate notification under the statute.

Although the time in which to seek class certification had expired pursuant to CPLR 902 by the time defendants sought discontinuance of this case based on the settlement, the court improperly denied plaintiff's application to send CPLR 908 notice to the putative class members.  CPLR 908 reads as follows:  “A class action shall not be dismissed, discontinued, or compromised without the approval of the court.  Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.”  “In American Pipe & Constr.  Co. v. Utah (414 U.S. 538, 553), the United States Supreme Court held that, under the federal class action rule, commencement of a class action suit tolls the running of the statute of limitations for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.  New York courts have adopted this rule” (Osarczuk v. Associated Univs., Inc., 130 AD3d 592, 595 [2d Dept 2015], lv dismissed 26 NY3d 1126 [2016];  see also Paru v Mutual of Am. Life Ins. Co., 52 AD3d 346, 348 [1st Dept 2008];  Yollin v. Holland Am. Cruises, 97 A.D.2d 720 [1st Dept 1983];  American Pipe & Constr.  Co. v. Utah, 414 U.S. 538, 551–554 [1974] ).  Thus, the putative class retains an interest in the action, and CPLR 908 is not rendered inoperable simply because the time for the individual plaintiff to move for class certification has expired.  Notice to the putative class members of the compromise in the instant case is particularly important under the present circumstances, where the limitations period could run on the putative class members' cases following discontinuance of the individual plaintiff's action.