Ansah v A.W.I. Sec. & Investigation, Inc.

Ansah v A.W.I. Sec. & Investigation, Inc. 2015 NY Slip Op 05129 Decided on June 16, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 16, 2015
Acosta, J.P., Renwick, Moskowitz, Manzanet-Daniels, Feinman, JJ.
15448 151032/12

[*1] Samuel Ansah, et al., Plaintiffs-Respondents,

v

A.W.I. Security & Investigation, Inc., et al., Defendants-Appellants, Whitestone Construction Corp., Defendant.

David N. Singer & Associates, LLP, New York (David H. Singer of counsel), for appellants.

Virginia & Ambinder, LLP, New York (LaDonna Lusher of counsel), for respondents.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 11, 2014, which, to the extent appealed from as limited by the briefs, denied the cross motion of defendants A.W.I. Security and Investigation, Inc., Adaze W. Imafidon, and any other entities affiliated with or controlled by them, for summary judgment dismissing the complaint, and granted plaintiffs' motion for an extension of time to file a motion for class certification, unanimously affirmed, without costs.

Plaintiffs bring this putative class action on behalf of themselves and others who worked as security guards and fire safety workers for defendants to recover prevailing wages, supplemental benefits, and overtime pay in connection with work they performed on various public construction projects. The court properly denied the motion for summary judgment as premature (CPLR 3212[f]), since the merits of plaintiffs' claims cannot be determined prior to production of the relevant public work contracts. Moreover, the parties presented conflicting affidavits concerning the nature of the work performed by plaintiffs, which would preclude summary judgment.

Appellants' argument that the contracts require arbitration, raised for the first time on appeal, is unpreserved (Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525 [1st Dept 2014]). Even if the argument were preserved, it would fail as a matter of law since plaintiffs never agreed to arbitrate (Matter of Belzburg v Verus Invs. Holdings Inc., 21 NY3d 626, 630

[2013] ["nonsignatories are generally not subject to arbitration agreements"]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 16, 2015

CLERK