Geoffrey Desrosiers,, Respondents,v.Perry Ellis Menswear, LLC, et al., Appellants.BriefN.Y.November 14, 2017APL-2016-00188 To Be Argued By: FRANK H. HENRY (admitted pro hac vice) Time Requested 15 Mirrutes New York County Clerk's Index No. 151414/15 OI01trt nf J\pp.eals STATE OF NEW YORK ..... GEOFFREY DESROSIERS, individually and on behalf of other persons similady situated who were employed by PERRY ELLIS MENSWEAR, LLC, PEl LICENSING, INc., or any other related entities, Plaintiffs-Respondents, -against- PERRY ELLIS MENSWEAR, LLC, PEl LICENSING, INC., and/or any other related entities, Defendants-Appellants. REPLY BRIEF FOR DEFENDANTS-APPELLANTS STEVEN DEPALMA NICOLL DAVIS & SPINELLA, LLP 450 Seventh Avenue, Suite 2205 New York, New York 10123 Telephone: (212) 972-0786 Facsimile: (201) 712-9444 FRANK H. HENRY (admitted pro hac vice) BLUEROCK LEGAL, P.A. 10800 Biscayne BoulevaTd, Suite 410 Miami, Florida 33161 Telephone: (3 05) 981-43 00 Facsimile: (3 05) 981-43 04 Attorneys for Defendants-Appellants i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii ARGUMENT .............................................................................................................1 POINT I THE COURT DETERMINES WHEN A MATTER PROCEEDS AS A CLASS ACTION PURSUANT TO CPLR § 902.....................................................................................1 POINT II FAILURE TO TIMELY MOVE FOR CLASS CERTIFICATION RENDERS CPLR § 908 INAPPOSITE................5 POINT III DESROSIERS SEEKS TO SEND CPLR § 908 NOTICE TO PURPORTED CLASS MEMBERS WITHOUT ANY PROCEEDINGS TO DETERMINE THE CLASS. ............................6 CONCLUSION..........................................................................................................7 ii TABLE OF AUTHORITIES Cases Page Green v. Blum, 444 N.Y.S.2d 178, 179 (2d Dep't 1981) ...................................................................4 Hernandez v. Gateway Demolition Corp., 263 A.D.2d 467, 691 N.Y.S.2d 915 (2d Dep't 1999) ...............................................3 Kensington Gate Owners, Inc., v. Kalikow, 99 A.D.2d 506, 471 N.Y.S.2d 11 (2d Dep't 1984) ...................................................4 Long Island Region NAACP v. North Hemptstead, 102 Misc.2d 704 (Sup. Ct. Nassau County 1979) ....................................................4 Meraner v. Albany Med. Ctr., 211 A.D.2d 867, 621 N.Y.S.2d 208 (3d Dep't 1995) ................................................4 O’Hara v. Del Bello, 47 N.Y.2d 363 (1979) ................................................................................................4 Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 806 N.Y.S.2d 553 (1st Dep't 2005) Shook v. Lavine, 49 A.D.2d 238, 374 N.Y.S.2d 187 (4th Dep't 1975) ................................................4 State Statutes CPLR § 901 ....................................................................................................... 1-3, 6 CPLR § 902 ........................................................................................................... 2-5 CPLR § 903 ...........................................................................................................2, 6 CPLR § 904 ...............................................................................................................2 CPLR § 908 ................................................................................................... 1-3, 5, 7 1 ARGUMENT POINT I THE COURT DETERMINES WHEN A MATTER PROCEEDS AS A CLASS ACTION PURSUANT TO CPLR § 902. The narrow issue before the Court is whether this lawsuit continued to be a class action after the deadline to move for class certification had expired. Desrosiers makes much of the fact that Perry Ellis “waited for the deadline to elapse, and then moved to dismiss the entire class action with prejudice.” Brief for Plaintiffs-Respondents (hereinafter "Opp. Br.") at p. 8 (emphasis in original). Desrosiers argues that the trial court’s decision dismissing this lawsuit after the class action deadline had expired would “provide parties with a mechanism to circumvent CPLR § 908’s notice requirement by waiting until the class certification deadline expires before requesting dismissal of class claims.” Id. Perry Ellis did, in fact, pause before moving to dismiss this case in order to give Desrosiers an opportunity to move for class certification. Desrosiers would have a point if Desrosiers had accepted an offer of settlement and this case was dismissed before Desrosiers had his full opportunity to move for class certification. That did not happen. Perry Ellis waited, Desrosiers did not move to certify a class, the deadline to so expired, and Perry Ellis correctly moved to dismiss this lawsuit where there was no further case or controversy between the parties. 2 Desrosiers’ argument is based on the flawed assumption that the plaintiff in litigation determines the class action status of a case by pleading a class action in the complaint. To the contrary, the trial court “allows” a lawsuit to proceed as a class by its own order under CPLR § 902 based on those factors set forth in CPLR § 901. Desrosiers is tasked with driving that process forward by filing a timely motion within 60 days of the last responsive pleading. See CPLR § 902. The resulting order describes the class (CPLR § 903) and notice of the case is sent to those class members under CPLR § 904. Desrosiers did not do any of that. No motion was ever filed seeking class relief, and as a result, no order was ever entered “allowing” class action status under § 902, and as a further result, no notice was ever sent under § 904. Desrosiers’ argument is based on the unworkable principle that his lawsuit was a class action because he pleaded “class action” in his complaint. The class status of this lawsuit was entirely within the authority of the trial court, and expressly conditioned on a timely motion under § 902. The lawsuit underlying this appeal was not a class action at the time it was dismissed by the trial court, and the notices demanded by Desrosiers under § 908 were not required and would have been inappropriate. 3 A lawsuit is maintained as a class action “only if the court finds that the prerequisites under section 901 [of the CPLR] have been satisfied.” CPLR § 902. Section 902 of the CPLR is styled, “Order allowing class action.” Within 60 days after the time to serve a responsive pleading has expired, the plaintiff “shall move for an order to determine whether it is to be so maintained.” Id. Section 902 implicates three possible outcomes: (1) a timely motion is filed and class status is denied; (2) a timely motion is filed and class status is granted; and (3) no timely motion is filed. Desrosiers appears to concede and Perry Ellis agrees that, in the first scenario, notice under § 908 is not required, and in the second scenario, notice under § 908 is required. It is Desrosiers’ position that notice to class members is always required in the third scenario, a position “uniformly enforced” according to Desrosiers “for more than thirty years.” Opp. Br. at p. 9. That statement is not reflected in the case law. Desrosiers argues that there is no authority for the point that class certification has been uniformly denied by the New York courts in the third scenario discussed above, where no timely motion was filed. Opp. Br.at p. 13. There is, however, a wealth of authority in this area. Hernandez v. Gateway Demolition Corp., 263 A.D.2d 467, 691 N.Y.S.2d 915 (2d Dep't 1999) (motion to dismiss class action allegations properly granted where 4 time to certify class had expired); Meraner v. Albany Medical Ctr., 211 A.D.2d 867 (3d Dep't 1995) (motion for certification properly denied where it was untimely); Kensington Gate Owners, Inc., v. Kalikow, 99 A.D.2d 506, 471 N.Y.S.2d 11 (2d Dep't 1984) (motion for class certification was properly denied where not made within 60 days of last responsive pleading); Green v. Blum, 444 N.Y.S.2d 178, 179 (2d Dep't 1981) (it was error to grant class action certification after the deadline under CPLR § 902); Shook v. Lavine, 49 A.D.2d 238, 374 N.Y.S.2d 187 (4th Dep't 1975) (class certification not required where motion was not made within 60 days); Long Island Region NAACP v. North Hemptstead, 102 Misc.2d 704 (Sup. Ct. Nassau County 1979), aff’d, 75 A.D.2d 842, 427 N.Y.S.2d 861 (2d Dep't 1980) (dismissing complaint against one co-defendant, declining to pass upon the question of whether class action status should be granted until an application under § 902). The unmistakable import of these cases, and this Court’s opinion in O’Hara v. Del Bellow, 47 N.Y.2d 363 (1979), is that the determination of whether a case will proceed as a class action is only made on motion within the first 60 days of the lawsuit. Absent a timely motion, the lawsuit cannot proceed as a class action. Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 173 (1st Dep't 2005). 5 POINT II FAILURE TO TIMELY MOVE FOR CLASS CERTIFICATION RENDERS CPLR § 908 INAPPOSITE. In this matter, Desrosiers simply allowed the § 902 deadline to expire without a motion for certification. The First Department below commented that “CPLR 908 is not rendered inoperable simply because the time for the individual plaintiff to move for class certification has expired.” R. 66. It is precisely because the time under CPLR 902 has expired that a lawsuit, including this one, is not allowed to be maintained as a class action. The fact that CPLR § 908 only applies to “class actions,” renders it impossible logic that Desrosiers’ lawsuit was not a class action after the § 902 deadline, but that § 908 still required notices to class members. Desrosiers’ also argues that “Defendants’ Calculated Tactics” having “intentionally waited until after the expiration of the deadline to move for class certification prior to moving for dismissal of the class claims” somehow warrants this Court’s attention. Opp. Br. at pp. 21-23. Another way of expressing that thought, of course, is that Desrosiers could have and should have moved for certification within the appropriate deadline. The “Calculated Tactics” described by Desrosiers are the same rules that Desrosiers could have and should have followed. 6 POINT III DESROSIERS SEEKS TO SEND CPLR § 908 NOTICE TO PURPORTED CLASS MEMBERS WITHOUT ANY PROCEEDINGS TO DETERMINE THE CLASS. Desrosiers’ final point at pages 24-25 of his Brief is very significant. Desrosiers argues that there would be no court proceedings to determine an appropriate class to receive notices in the event the decision of the First Department is allowed to stand. This is an important point because such a procedure would avoid any determination by the trial court that the prerequisites to class status had been satisfied under CPLR § 901, and would entirely take away from the trial court the responsibility to describe an appropriate class under CPLR § 903. Under the procedure suggested by Desrosiers, those responsibilities would be left to Desrosiers and his attorneys instead of the trial court as envisioned by Article 9 of the CPLR. And that is really what this appeal is about. Desrosiers, through his counsel, wants to send an invitation to every intern that has worked with Perry Ellis offering them the opportunity to be represented by Desrosiers’ counsel. Desrosiers stipulated to the dismissal of this lawsuit and those former interns do not have the opportunity to join in this lawsuit. There are no interests to be protected in the relief requested by Desrosiers. 7 CONCLUSION The order of the Appellate Division, First Department, should be reversed because notice under CPLR § 908 was not required. Any form of class relief was inappropriate after Desrosiers failed to timely move for class certification. For these reasons, Perry Ellis respectfully requests that this Court reverse the decision of the Appellate Division and affirm the Supreme Court's order dismissing this case. Dated: New York, New York January 23, 2017 Respectfully submitted, NICOLL DAVIS & SPINELLA LLP Attorneys for Appellants-Defendants 450 Seventh Ave., Suite 2205 New York, New York 10123 Steven C. DePalma /s/ Steven C. DePalma 8 PRINTING SPECIFICATION STATEMENT This computer generated brief was prepared using a proportionally spaced typeface. Name of typeface: Times New Roman Point Size: 14 Line spacing: 2 (Double) The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents and table of authorities is 1,419. Dated: New York, New York January 23, 2017 Respectfully submitted, NICOLL DAVIS & SPINELLA LLP Attorneys for Appellants-Defendants 450 Seventh Ave., Suite 2205 New York, New York 10123 Steven C. DePalma /s/ Steven C. DePalma