Opinion
12403- 12403A Index No. 160843/15 162351/15 Case No. 2019-4719
11-17-2020
Blendi AGOLLI et al., Plaintiffs-Appellants v. ZORIA HOUSING, LLC, et al., Defendants-Respondents PS Contracting of NJ Inc. et al., Defendants. Blendi Agolli et al., Plaintiffs-Appellants, v. Technico Construction Services Inc., Defendant-Respondent PS Contracting of NJ Inc., et al., Defendants.
Virginia & Ambinder, LLP, New York (James E. Murphy of counsel), for appellants. Crowell & Moring LLP, New York (Eric Su of counsel), for Zoria Housing, LLC and U.S. Specialty Insurance Co., respondents. Rabinowitz, Galina & Rosen, Mineola (Susan J. Deith of counsel), for Technico Construction Services, Inc., respondent.
Virginia & Ambinder, LLP, New York (James E. Murphy of counsel), for appellants.
Crowell & Moring LLP, New York (Eric Su of counsel), for Zoria Housing, LLC and U.S. Specialty Insurance Co., respondents.
Rabinowitz, Galina & Rosen, Mineola (Susan J. Deith of counsel), for Technico Construction Services, Inc., respondent.
Manzanet–Daniels, J.P., Singh, Scarpulla, Shulman, JJ.
Orders, Supreme Court, New York County (Alan C. Marin, J.), entered on or about May 13, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motions for class certification for failure to satisfy the numerosity requirement, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings in accordance with this decision.
The court reasonably interpreted Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 400, 998 N.Y.S.2d 729, 23 N.E.3d 997 (2014) in concluding that 40 was the presumed threshold of numerosity for class certification ( CPLR 901[a][1] ). Nevertheless, it improvidently exercised its discretion in denying class certification on the ground that plaintiffs failed to satisfy that requirement. The affidavits and documents submitted by both parties are insufficient to determine even an approximate number of employees who worked on the various public works projects giving rise to these actions. Thus, we remand for further discovery as to the size of the class (see Katz v. NVF Co., 100 A.D.2d 470, 474, 473 N.Y.S.2d 786 [1st Dept. 1984] ) and, if necessary, for a determination whether the other prerequisites of CPLR 901(a) and the additional factors set forth in CPLR 902 are met (see Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 422–423, 904 N.Y.S.2d 372 [1st Dept. 2010] ).