Galdamez v Biordi Constr. Corp.

[*1] Galdamez v Biordi Constr. Corp. 2006 NY Slip Op 51969(U) [13 Misc 3d 1224(A)] Decided on October 17, 2006 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 15, 2006; it will not be published in the printed Official Reports.

Decided on October 17, 2006
Supreme Court, New York County

Oscar Galdamez, SLAWOMIR PALECKI and TOMASZ SZYMKIEWICZ, individually and on behalf of all other persons similarly situated who were employed by BIORDI CONSTRUCTION CORP. and/or any other entities affiliated with or controlled by BIORDI CONSTRUCTION CORP., with respect ot the Public Works Projects mentioned in the Complaint, Plaintiffs,

against

Biordi Construction Corp., FRANK BIORDI and JOHN DOE BONDING COMPANIES 1 THROUGH 3, Defendants.



107984/05

Doris Ling-Cohan, J.

Upon the foregoing papers [FN1], it is ordered that this motion is granted in accordance with the decision set forth below.

Background

Plaintiffs are individuals employed by defendant Biordi Construction Corp. (Biordi) beginning in or about 1998 to perform work for certain Public Works Projects involving the construction of New York City public schools and library buildings in Queens. They bring this action to recover the prevailing wages and supplemental benefits due to them pursuant to Labor Law § 220 (3). Plaintiffs move for an order, pursuant to CPLR § § 901 and 902, granting class [*2]certification to a class comprised of individuals employed by Biordi to work on the Public Works Projects who were entitled to receive prevailing wages and supplemental payments, but did not receive adequate pay.

Discussion

CPLR 901 (a)

CPLR 901 (a) sets forth the following prerequisites to maintain a class action: 1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;4. the representative parties will fairly and adequately protect the interests of the class; and5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

As explained in further detail below, plaintiffs have fulfilled all of the above prerequisites for certification of a class action, liberally construed in accordance with the legislative intent in enacting CPLR article 9 to replace the narrow class action legislation which preceded it (see Friar v Vanguard Holding Corp., 78 AD2d 83, 91 [1st Dept 1980]).

1. Numerosity

There is no " mechanical test'" to determine whether the numerosity requirement has been met, and "(e)ach case depends upon the particular circumstances surrounding the proposed class"(see Friar v Vanguard Holding Corp., 78 AD2d at 96). It has, however, been held that "the threshold for impracticability of joinder seems to be around forty" (Dornberger v Metropolitan Life Ins. Co., 182 FRD 72, 77 (SD NY 1999; see also Klakis v Nationwide Leisure Corp., 73 AD2d 521, 522 [1st Dept 1979] [class certification properly denied where putative class consisted of only 21 individuals]; Caesar v Chemical Bank, 118 Misc 2d 118, 119 [Sup Ct, New York County 1983] [certifying class consisting of 39 bank employees]; Cannon v Equitable Life Assur. Soc. of U. S., 106 Misc 2d 1060, 1065 [Sup. Ct., Queens County 1980], revd on other gds. 87 AD2d 403 [2d Dept 1983] [there has been trend "to regard classes of approximately 30 or less as not being sufficiently numerous, although there are exceptions"] [citations and internal quotations omitted])

The proposed representatives of the plaintiff class, as well as other putative members of that class, have submitted affidavits indicating that the class consists of between 30 and 70 former workers employed by Biordi (see, e.g.. Aff. of Oscar Galdamez [recalls working with approximately 50 other workers at Biordi and recalls the names of 22 of them]; Aff. of Slawomir Palecki [worked with approximately 70 workers at various job sites and remembers 21 names]; [*3]Aff. of Tomasz Szymkiewicc [recalls working with no less than 30 workers while employed by Biordi and recalls 14 names] [Annexed as Exs. A-C to Aff. of Michelle T. Baginski, Esq. in Support of Motion]; Reply Affs. of Mario Cruz and Mario Ramos [worked with no less than 45 other workers while at Biordi]; Reply Affs. of Leonides Escobar, Pedro Rivera and Modesto Martinez (worked with no less than 30 other workers] [Annexed as Exs. C-G to Reply Aff. of Sumani Lanka, Esq.] ).

In opposition to the affidavits of workers submitted by plaintiffs in support of their class certification motion, the president of Biordi has submitted an affidavit stating, in a conclusory fashion, that his company employed only approximately 20-25 workers, during the period of 1999 to the present, to perform work on small sidewalk jobs for the Public Works Projects at issue. Significantly, in the prior decision and order dated June 29, 2006, this Court noted that defendants have failed to respond to plaintiffs' pre-certification discovery demands, which could reveal more precise information concerning the number of class members. Accordingly, this Court concludes that, based upon the evidence presented by plaintiffs in support of this motion, they have satisfied the numerosity requirement of CPLR 901 (a) (1). As will be discussed below, plaintiffs should be given every benefit of the doubt, as they fulfill all of the other prerequisites for a class action.

2. Predominance of Common Issues

Plaintiffs have satisfied this prerequisite by listing the common factual and legal questions involved in this putative class action, including but not limited to: (1) whether the schedules of prevailing wages and supplemental benefits to be paid to all of the workers furnishing labor on the Public Works Projects were annexed to the respective contracts; (2) whether Biordi posted notices at the job sites setting forth the prevailing wages and supplemental benefits; (3) whether the bonding companies issued labor and material payment bonds guaranteeing the obligations under the Public Works Contracts; (4) whether Biordi paid the required overtime and premium pay compensation; (5) whether the work performed by members of the proposed class was for "public work", as defined by the applicable provisions of the Labor Law; (6) whether plaintiffs and other class members were third party beneficiaries of the Public Works Contracts; and (7) whether Biordi is obligated to pay wages and supplemental benefits owed to plaintiffs and other class members (Aff. of Michelle T. Baginski, Esq. in Support of Motion [Baginski Aff.], at ¶ 17). Plaintiffs further emphasize that the only differences between the claims of each class member relate to the amount of damages owed to each individual, including the number of hours worked and the trade classification of each worker.

3. Typicality

Plaintiffs have satisfied this requirement by submitting affidavits from each proposed class representative, demonstrating that he was employed by Biordi to perform work at the sites of the Public Works Projects pursuant to the Public Works Contracts and each was not paid the appropriate prevailing wages and supplemental benefits (see Baginski Aff., Exs. A-C). Accordingly, there is no question that the proposed representatives' claims are typical of those of the other class members, as they arise "out of the same course of conduct as the class members' claims and [are] based on the same cause of action" (Pruitt v Rockefeller Ctr. Props., Inc., 167 AD2d 14, 22 [1st Dept 1991] [parenthetical supplied]).

4. Fair and Adequate Representation [*4]

Plaintiffs have stated that they have employed class counsel who are experienced commercial litigators who have successfully represented classes in numerous class actions involving issues similar to those at bar (Baginski Aff., at ¶ ¶ 23, 29). Class counsel has agreed to advance all costs of this litigation and plaintiffs have agreed to reimburse class counsel for all expenses should this litigation prove successful (Baginski Aff., at ¶ 31). As has been discussed above, the proposed class representatives were all employed by Biordi to perform work on the Public Works Projects and assert that they were substantially underpaid for their services.

Defendants' objections to the proposed class members lack merit. Defendants speculate that plaintiffs will not actually be able to pay the expenses of the litigation to reimburse class counsel. This is baseless, as plaintiffs will only be required to pay the litigation expenses if they prevail and receive a monetary award. Defendants further point out that class representative Palecki was arrested and convicted of driving under the influence and Galdamez was arrested and convicted of assault and battery. These alleged infractions do not bar the individuals from representing the proposed class, as they do not constitute "questionable conduct arising out of or touching upon the very prosecution of the lawsuit" (Jane B. v New York City Dept. of Social Servs., 117 FRD 64, 71 [SD NY 1987] [proposed class representatives can fairly and adequately represent a class of adolescent girls assigned to certain facilities, despite the fact that they have been adjudicated juvenile delinquents]; see also Pruitt v Rockefeller Ctr. Props., 167 AD2d at 25).

5. Superiority of Class Action

Lastly, there is no question that a class action is the superior method to pursue this litigation. The alternative of requiring dozens of individual actions is an ineffective and inefficient method, which could lead to conflicting determinations and the imposition of different and, perhaps, incompatible standards upon defendants. According to plaintiffs, the class of workers numbering between 30 and 70 members has incurred an aggregate of approximately $1 million in damages (Baginski Aff., at ¶ 34). Yet, given the relatively small size of each claim, many members of the class would not be able to afford to pursue redress of defendants' Labor Law violations absent class certification. This furthers the "collateral public benefits" of the class action, which is "a means of inducing socially and ethically responsible behavior on the part of large and wealthy institutions which will be deterred from carrying out policies or engaging in activities harmful to large numbers of individuals" (Friar v Vanguard Holding Corp., 78 AD2d at 94).

CPLR 902 Factors

CPLR 902 (a) provides, as follows, in pertinent part: The action may be maintained as a class action only if the court finds that the prerequisites under section 901 have been satisfied. Among the matters which the court shall consider in determining whether the action may proceed as a class action are:1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;2. The impracticality or inefficiency of prosecuting or defending separate actions;[*5]3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum;5. The difficulties likely to be encountered by the management of a class action.

All of the above factors favor maintaining the instant litigation as a class action. To the knowledge of class counsel, there are no other actions which have been commenced by potential class members (see CPLR 902 [a] [1] and [3]). As discussed above under CPLR 901 (a) (5), requiring individual workers to pursue independent actions for the wages and supplemental benefits owed to them is both impractical and inefficient (see CPLR 902 [a] [2]). This forum is appropriate, as the Public Works Projects were located in New York (see CPLR 902 [a] [4]). Finally, class counsel has concluded that there are few difficulties in managing a class action, when compared to the complications of managing numerous separate actions by the affected workers (see CPLR 902 [a] [5]).

Responding to Objections Raised by Defendants

1. Timeliness of Plaintiffs' Motion for Class Certification

CPLR 902 provides that a motion for class certification shall be made "(w)ithin sixty days after the time to serve a responsive pleading has expired ...". Defendants emphasize that the Preliminary Conference Order issued by the Court required plaintiffs to move for class certification on or by February 15, 2006 (Aff.of Joseph M. LaBuda, Esq. in Op.[LaBuda Aff.] Ex. A). Instead, plaintiffs made this motion on March 17, 2006. It must be emphasized, however, that in the order dated June 29, 2006, this Court stated that defendants have flouted the provisions of the Preliminary Conference Order and the two subsequent court orders requiring them to provide documents and appear for depositions sought by plaintiffs for pre-certification discovery. The June 29, 2006 order was issued on default after defendants failed to appear at two discovery conferences. Indeed, plaintiffs confirm that, at the time they submitted their reply on the instant application, defendants had failed to comply with their discovery demands and the discovery schedule set forth in this Court's order, dated January 27, 2006. Nor did defendants respond to the letter from plaintiffs' counsel, dated February 20, 2006, advising them of the pattern of noncompliance with court-ordered disclosure and notifying them that the motion for class certification would be filed by March 17, 2006 (Reply Aff. of Sumani Lanka, Esq., Exs. A and B).

Defendants' failure to comply with this court's discovery orders should not inure to the detriment of plaintiffs. In essence, defendants ask this Court to reward their failure to comply with this Court's discovery orders. This Court declines to take such improper action, for the following reasons stated in the prior June 29, 2006 order: "The court notes that defendants oppose such motion [for class certification] and have the gall to object to the timeliness of plaintiffs' motion for class certification, when defendants have failed to respond to plaintiffs' Pre-certification Discovery Demands, even after being ordered by this court (which plaintiffs assert as the reason why the [*6]motion was delayed)."

Accordingly, plaintiffs' minimal delay in moving for class certification, largely the result of defendants' flouting of court-ordered disclosure, does not bar them from obtaining this important relief.

2. Whether Plaintiffs' Class Action is Permissible Pursuant to CPLR 901 (b)

Defendants' major argument in opposition to plaintiffs' motion for class certification is based upon CPLR 901 (b) which provides, "Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action." In Pesantez v Boyle Envtl. Servs, Inc. (251 AD2d 11, 12 [1st Dept 1998]), the Appellate Division explained that a class of workers seeking to recover the prevailing wages and benefits pursuant to Labor Law § 220, similar to plaintiffs in the instant matter, may maintain a class action based upon a common-law breach of contract theory for underpayment of wages and benefits. This is true despite the fact that the Court recognized that there is no private right of action for underpayment of wages pursuant to Labor Law § 220 until there has been an administrative determination by the Commissioner of Labor that has either gone unreviewed or has been affirmed in the employees' favor (see Labor Law § 220 [8]; Pesantez, 251 AD2d at 12; see also De La Cruz v Caddell Dry Dock & Repair Co., 22 AD3d 404 [1st Dept 2005]). The Appellate Division also noted that individuals who wish to pursue punitive claims pursuant to Labor Law § 198, which cannot be maintained as a class action, should be afforded an opportunity to opt out of the class action (id.). Accordingly, the provision in CPLR 901 (b) does not bar a class action to recover unpaid wages and benefits due pursuant to the applicable prevailing rate of wages and supplemental benefits, so long as putative class members are afforded the opportunity to opt- out of the class to pursue the statutory remedy for liquidated damages and penalties (see Ansoumana v Gristede's Operating Corp., 201 FRD 81, 88 [SD NY 2001]; Brzychnalski v UNESCO, Inc., 35 F Supp 2d 351, 354 [SD NY 1999]).

3. ERISA Preemption of Plaintiffs' Claims Related to the Underpayment of Benefits

Defendants assert that plaintiffs' claims for unpaid supplemental benefits are preempted by the Employee Retirement Income Security Act (ERISA), 29 USC § 1001, et seq., citing General Elec. Co. v New York State Dept. of Labor, 936 f2d 1448 [2d Cir 1991]). However, in the more recent decision of Burgio and Campofelice, Inc. v NYS Dept.of Labor (107 F3d 1000, 1008 -1011 [2d Cir 1997]), the Court of Appeals held that the State had changed its approach to supplemental benefits under the prevailing wage provisions of Labor Law § 220, from the "line-item" approach used at the time of the General Elec. decision, to a "total package" approach. In Burgio, the Court of Appeals held that "Congress did not mean to preempt state prevailing wage statutes, such as New York's when the total package approach is used", as the relationship of the prevailing wage regulations are too tenuous, remote and peripheral to ERISA employee benefit plans (Burgio, 107 F3d at 1009, 1011).

Accordingly, it is

ORDERED that plaintiffs' motion for class certification is granted and leave is granted, pursuant to CPLR § § 901 and 902, for plaintiffs to prosecute their action on behalf of a class consisting of individuals employed by defendant Biordi Construction Corp. from 1998 to present who worked on various public works projects, including, but not limited to Bayside High School, [*7]Public School 205, Public School 18, Public School 115, Public School 98, Benjamin Cardozo High School, Public School 213, Jamaica Learning Center, Jamaica High School, Public School 90, Francis Lewis High School, Public School 158, Public School 205, Queens Library at Union Turnpike and Bell Boulevard, Queens Library at Fresh Meadows, Queens Library, Douglaston (the Public Works Projects), to recover wages and benefits which class members were contractually entitled to receive for work they performed on these publicly financed projects, but did not receive; and it is further

ORDERED that, within 30 days of the date of this order, defendants shall furnish to plaintiffs' counsel a list of the names and last known addresses of all persons employed by Biordi Construction Corp. from 1998 to the present who worked on the Public Works Projects; and it is further

ORDERED that plaintiffs shall send a notice to all of the individuals identified by defendants, within 60 days of the date of this order, and said notice shall include a provision that each individual may "opt-out" of the class action, by sending a signed form to plaintiffs' counsel; the form of said notice shall be approved by this Court; such proposed notice shall be sent to counsel for defendants within 30 days of the date of this order for comment, which shall be submitted in writing to opposing counsel and the Court within 7 days, and plaintiffs may submit a written reply to defendants' comments within 5 days; and it is further

ORDERED that the parties shall appear for a compliance conference on Thursday, December 7, 2006 at 10:00 A.M. in Room 279 at 80 Centre Street in New York, NY, at which time the notice shall be discussed, in addition to all other matters, including settlement.

This constitutes the Decision and Order of the Court.

Dated:10/17/06ENTER:,

Doris Ling-Cohan, JSC

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Footnote 1: The sur-reply which defendants submitted, without court permission, after the submission date of this motion, and was not sent to plaintiffs is rejected, as was previously set forth in this Court's order, dated June 29, 2006.