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HAROLD R. ARMSTRONG ET AL. v. JAMES RUBIN (03/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


March 20, 1969

HAROLD R. ARMSTRONG ET AL., ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL EMPLOYEES OF THE DEFENDANTS, SIMILARLY SITUATED, RESPONDENTS,
v.
JAMES RUBIN, DOING BUSINESS AS ORTHODONTISTS' SERVICE, APPELLANT, ET AL., DEFENDANTS

Concur -- Eager, J. P., McGivern, Markewich and Nunez, JJ.

The actions were brought under the Federal Fair Labor Standards Act (U. S. Code, tit. 29, § 201 et seq.), which provides a time of limitation of two years within which to bring an action after accrual of the cause (§ 255, subd. [a]), the date of commencement of the action to be deemed, in a collective or class action, that on which a plaintiff named in the title files his consent to become a party plaintiff (§ 256, subd. [a]). The only provision for late filing is that contained in subdivision (b) of the latter section: "on the subsequent date on which such written consent is filed in the court in which the action is commenced." Certain plaintiffs, named in the complaint, failed to file such consents, the explanation being that counsel had retained the prior-executed consents in his file; and they were permitted by the Trial Judge to file them, nunc pro tunc, during trial, despite the passage of more than two years since accrual of the causes. The ruling by the Trial Judge was clearly violative of the statute. Nothing is found in the record which may be construed as waiver by defendants of the time bar. Indeed, the limitation was pleaded in the answer in clear and adequate language sufficient to give the nonfiling plaintiffs notice of each and every aspect of that defense, and there was no need whatever specifically to plead the failure to file consents.

Disposition

Determination of the Appellate Term entered May 14, 1968, affirming a judgment of the Civil Court entered June 6, 1967, unanimously reversed on the law, without costs and without disbursements, as to those plaintiffs who attempted at the trial of the action belatedly to file consents to become parties plaintiff, and the complaints of those plaintiffs dismissed, and otherwise affirmed.

19690320

© 1998 VersusLaw Inc.



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