Maldanado v Everest Gen. Contrs., Inc.
Annotate this CaseDecided on September 9, 2009
Supreme Court, Kings County
Freddy Maldanado, IVIN ENAMORADO, IVIS GUEVARA, individually and on behalf of all other persons similarly situated who were employed by EVEREST GENERAL CONTRACTORS, INC. and/or other entities affiliated with, subcontracted to, or controlled by EVEREST GENERAL CONTRACTORS, INC. with respect to certain Public Works Projects awarded by THE CITY OF NEW YORK, THE NEW YORK CITY HOUSING AUTHORITY, THE CITY OF STAMFORD, CONNECTICUT, THE STATE OF NEW YORK and all other municipal entities and subdivisions where Public Works Projects were performed,, Plaintiffs,
against
Everest General Contractors, Inc. GEORGE NICOLAIDES, as an individual, VIGILANT INSURANCE COMPANY and GREENWICH INSURANCE COMPANY, Defendants.
3150/04
Counsel:
For Plaintiff:
James Emmet Murphy
111 Broadway Suite 1403
New York, NY 10006
212-943-9080
For Defendants:
Richard Flanagan, PLLC
26 N. Broadway - Suite 2
Nyack, NY 10960
845-353-7780
Francois A. Rivera, J.
On or about January 30, 2004, Plaintiffs commenced the instant action against Defendants Everest General Contractors, Inc. ("Everest"); George Nicolaides ("Nicolaides"); Vigilant Insurance Company ("Vigilant"); and Greenwich Insurance Company ("Greenwich").
Plaintiffs in this action are a certified class of workers consisting of: "All past and present employees of Everest General Contractors, Inc. ("Everest") who performed construction and modernization work and all work incidental thereto at projects located at General Berry Houses, Morrisania Houses and the General Grant Houses. Plaintiffs seek to recover earned but unpaid wages and supplemental benefits for work performed upon those projects.
Plaintiffs' claims for worked performed at the Grant Houses project have been settled and compromised with Defendant Greenwich Insurance Compnay. Plaintiffs have not pursued their claims for the Morrisania Houses project, for which no claim exists against a labor and material payment surety bonding company. Accordingly, the trial on damages and the judgment Plaintiffs now seek against Defendants Everest and Vigilant, is limited to the work performed by the Plaintiff class members at the General Berry Houses project in Staten Island.
Liability was previously established against Everest and Vigilant, as recognized by this Court at oral argument on Plaintiff' motion to restore this action to the trial calender on September 12, 2008, and the only issue currently before the Court is the extent of damages owed to Plaintiffs by Everest and Vigilant.
On the first day of trial, this Court ruled that Plaintiffs would be able to establish liability for the entire class on the basis of a representative sampling of five class members. In accordance with this order, Plaintiffs produced five class members to testify about their work at the Berry Houses project: Armando Reyes, Eduardo Diaz, Gumercindo Reyes, Manuel Diaz, and Deris Vargas. Defendants called two witnesses: former Everest employee Oscar Conde, and Everest's owner, George Nicolaides.Everest was a prime contractor for NYCHA on the general Berry Houses Project.
Vigilant was obligated, as Everest's surety, to pay all claims for wages and compensation for labor performed and services rendered by all persons engaged in the prosecution of the work under the Berry Houses Contract, under the terms of a surety bonding agreement it entered into the penal sum of $391,200.00.
Workers performing roofing work at the Berry Houses project were entitled to receive $41.88 per hour in wages and supplemental benefits for their work at the Berry Houses. All of the persons performing roofing work at the Berry Houses project were employed by Everest. All of the class members working on the Berry Houses project were paid $100.00 per day in cash. At no time were they paid $41.88 per hour for the work on the Berry Houses project.
Typically, approximately thirteen people, including working foreman Aldo Diaz, who was paid more than $100.00 per day, worked as roofers on the General Berry Houses project each day. Armando Reyes worked with twelve to thirteen other workers each day; Eduardo Diaz worked with ten to eleven other roofing workers each day; Gumercindo Reyes worked with [*2]between twelve and thirteen people; Manuel Diaz worked with between twelve and thirteen other workers each day; Deris Vargas worked with between twelve and thirteen people every day. The other twelve to thirteen workers, aside from Aldo Diaz, all earned $100.00 per day for their work at Berry Houses.
Roofing work on the Berry Houses project was performed between March and November of 2000. Roofing workers on the Berry Houses project worked five days per week, every week between March and November of 2000, occasionally taking days off due to rain.
Defendants were required to submit Certified Payroll Reports to the New York City Housing Authority for their work at the berry Houses Project. These Certified Payroll reports were inconsistent with the records. For example, Plaintiff class member and witness Eduardo Diaz testified that he worked at the Berry Houses project from March through November of 2000, every week, for five days a week with the exception of rain days. Defendant George Nicolaides testified that Eduardo Diaz worked at the Berry Houses project for approximately a month and a half in the summer of 2000. Everest's Certified Payroll reports, however, show Mr. Diaz working only a total of one day, March 15, 2000.
Defendants' witness Oscar Conde testified that he worked for Everest on the Berry Houses project for two to three weeks in March of 2002. The Berry Houses project took place between March and November of 2000. Mr. Conde testified that he worked for Proto Construction, an entity unaffiliated with Everast. throughout the year 2000, when the Berry Houses project was occurring.
Defendants' witness George Nicolaides testimony was confused regarding this construction project and the dates, times, and personnel of those who worked.At one point, Nicolaides admitted that he might be confusing different projects unrelated to the Berry Houses project he was supposed to testify about.
Defendants' Certified Payroll Reports were also inconsistent with on-trial testimony.
The Court credits plaintiffs' evidence in its entirety.
CALCULATION OF DAMAGES
Where an employer failed to keep and produce accurate records, calculations of underpayments of wages may be made using plaintiffs' testimony, and that the burden then shifts to defendants to disprove plaintiffs' calculations (Anderson v Mt. Clemens Pottery Co., 328 U.S. 680 [1946]).
In accordance with Article 9 of the CPLR, all roofers who worked on the Berry Houses project are certified members of the class action. As such, a judgment for money damages is warranted in favor of the class as a whole. The Prevailing Wage and Supplemental benefit rate to which plaintiffs were entitled for roofing work on the General Berry Houses project was $41.88 per hour. According to defendant Everest's Certified Payroll Reports, the first day of work on the General Berry Houses Project was March 15, 2000. The last day of work performed on the project was November 15, 2000. Due to rain, for thirty-four of those days, no work was performed. A total of 141 days of work were performed during that time period. All workers on the project worked eight hours per day for which they were paid $100.00 per day. Twelve workers worked each of these days for eight hours. Twelve workers working eight hours per day fo r141 days would have worked 13, 536 hours. At $41.88 per hour, these workers should have been paid a total of $566,887.68 in wages. Instead, these workers were paid $100 per day. [*3]Twelve workers working 141 days for $100.00 per day received $169,200.00. The difference between what these worker should have been paid and what they actually were paid is $397,687.68 plus interest.
Since the underpayments exceed the maximum penal sum of Vigilant's labor and material bond, Vigilant is jointly and severally liable for only $391,200.00. Under CPLR §5004, statutory interest accrues on the outstanding principal payments owed to plaintiffs since the time of underpayment. Interest accrues from November 15, 2000, the date of the last underpayment and the date of plaintiffs' submission, May 8, 2009.
Defendant Vigilant is not liable for all pre-judgment interest dating back to the original underpayments. A surety's liability is limited to the amount specified in the bond plus interest from the date of the surety's default (see Fidelity New York, FSB, v Aetna Insurance Company, 234 AD2d 261 [2nd Dept 1996]). On a action against a surety bond, the date of default is the commencement of an action against the surety bond. The summons and complaint against Vigilant was filed on January 30, 2004. Hence, any interest would accrue from January 30, 2004 until May 8, 2009.
Plaintiffs' are ordered to submit a proposed judgment in accordance with these finding. Interest is to be calculated by the County Clerk.
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J.S.C.
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J.S.C.
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