Opinion
03-28-2024
Wilfred CHUA et al., Plaintiffs-Respondents, v. TRIM-LINE HITECH CONSTRUCTION CORP. et al., Defendants, J. Kokolakis Contracting, Inc., Defendant-Appellant. J. Kokolakis Contracting, Inc., Third-Party Plaintiff-Appellant, v. Tristan Angeles, Third-Party Defendant.
Trif & Modugno LLC, New York (Kevin S. Brotspies of counsel), for appellant. Virginia & Ambinder, LLP, New York (Lloyd R. Ambinder of counsel), for respondents.
Trif & Modugno LLC, New York (Kevin S. Brotspies of counsel), for appellant.
Virginia & Ambinder, LLP, New York (Lloyd R. Ambinder of counsel), for respondents.
Manzanet-Daniels, J.P., Kapnick, González, Mendez, Pitt-Burke, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered September 26, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motion for class certification, unanimously affirmed, without costs.
The named plaintiffs sue individually and on behalf of putative class members who performed construction work, including sheet-metal work, on about 14 publicly-financed projects throughout the New York metropolitan area between June 2013 and the present for nonparty government entities. They seek to recover the prevailing rate of wages and supplemental benefits as required by the collective bar-gaining agreements entered into by appellant J. Kokolakis Contracting, Inc. and other-prime contractor defendants.
[1, 2] The motion court providently exercised its discretion in holding that plaintiffs satisfied the prerequisites for class certification under CPLR 901 and 902 (see Galdamez v. Biordi Constr. Corp., 50 A.D.3d 357, 358, 855 N.Y.S.2d 104 [1st Dept. 2008]). The affidavits submitted by the named plaintiffs and two other former employees of defendants Trim-Line Construction Corp. and TLH Construction Corp. (together, the Trim-Line defendants) established the numerosity of the class by identifying at least 39 coworkers who performed construction work, including sheet-metal work and other construction-related tasks at issue, on behalf of those defendants during the relevant time period (see Lewis v. Hallen Constr. Co., Inc… 193 A.D.3d 511, 512, 141 N.Y.S.3d 857 [1st Dept. 2021]). There is no requirement that plaintiff must identify at least 40 members to demonstrate numerosity (see Klakis v. Nationwide Leisure Corp., 73 A.D.2d 521, 522, 422 N.Y.S.2d 407 [1st Dept. 1979]; see also Harries v. Pan American World Airways, Inc., 74 F.R.D. 24, 44-45 [N.D.Cal. 1977]).
[3, 4] Additionally, plaintiffs met the commonality and typicality prerequisites because the members of the class allege that the Trim-Line defendants failed to pay the required prevailing wage and supplemental benefits owed to them (see Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543, 995 N.Y.S.2d 13 [1st Dept. 2014]; Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 423, 904 N.Y.S.2d 372 [1st Dept. 2010]). A class action is the superior vehicle for resolving this prevailing wage dispute because plaintiffs have shown that the damages allegedly suffered by an individual class member are likely to be insignificant and that the costs of prosecuting individual actions would result in the class members having no realistic day in court (see Nawrocki v. Proto Constr. & Dev. Corp., 82 A.D.3d 534, 536, 919 N.Y.S.2d 11 [1st Dept. 2011]).
Appellant’s other arguments disputing the merits of plaintiffs’ claims are not persuasive. Individualized damages assessments based on the Trim-Line Defendants’ purportedly systematic policies of paying lower wages do not undermine commonality or weigh substantially against class certification (see Brown v. Mahdessian, 206 A.D.3d 511, 512, 168 N.Y.S.3d 684 [1st Dept. 2022]; Weinstein v. Jenny Craig Operations, Inc., 138 A.D.3d 546, 547, 30 N.Y.S.3d 618 [1st Dept. 2016]). That two plaintiffs and a former employee of the Trim-Line defendants performed nonprevailing wage work during the relevant time period does not require a different result.
The affidavits and paycheck stubs submitted by plaintiffs in support of their certification motion demonstrate merit to their claims that they and other similarly situated individuals who performed construction work, including sheet-metal work and other construction-related tasks on projects requiring payment of prevailing wages and supplemental benefits, were not paid those wages and benefits during the relevant time period by the Trim-Line defendants (see Dabrowski v. Abax Inc., 84 A.D.3d 633, 634, 923 N.Y.S.2d 505 [1st Dept. 2011]). This evidence also suggests that defendants failed to maintain adequate records related to their compliance with Labor Law requirements or to the hours that the employees actually worked (see Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., 220 A.D.3d 519, 521, 198 N.Y.S.3d 24 [1st Dept. 2023]). Although plaintiffs’ averment that "most workers were paid below $30.00 per hour" because "a number of them" told them how much they were getting paid is hearsay, it is sufficient to satisfy the minimal threshold of establishing that their claim was not a sham (see Weinstein v. Jenny Craig Operations, Inc., 138 A.D.3d at 547, 30 N.Y.S.3d 618).
[5, 6] The CPLR 902 factors also weigh in favor of class certification, given that the burden on litigants and on the courts would likely be significantly increased if aggrieved employees were forced to pursue individual lawsuits (see Lavrenyuk v. Life Care Services, Inc., 198 A.D.3d 569, 570, 152 N.Y.S.3d 907 [1st Dept. 2021]). Finally, the appeals filed by defendants Kiska Construction, Inc., Makro General Contractors, Inc., RMSK Contracting Corp., Forte Construction Corp., and T.A. Ahern Contractors Corp. from the order appealed are deemed abandoned because those defendants never perfected their appeals (see Golden v. Multigas Distribs., 256 A.D.2d 215, 216, 683 N.Y.S.2d 16 [1st Dept. 1998]; Shramko v. Hills Wrecking Corp., 52 A.D,2d 523, 523, 381 N.Y.S.2d 676 [1st Dept. 1976]).