Opinion
6651 6652 Index 653265/12
05-24-2018
Erjon ISUFI, et al., Plaintiffs–Respondents, v. PROMETAL CONSTRUCTION, INC., Defendant–Appellant, RLI Insurance Company, Defendant.
FordHarrison LLP, New York (Eric Su of counsel), for appellant. Virginia & Ambinder, LLP, New York (Michele A. Moreno of counsel), for respondents.
FordHarrison LLP, New York (Eric Su of counsel), for appellant.
Virginia & Ambinder, LLP, New York (Michele A. Moreno of counsel), for respondents.
Friedman, J.P., Gische, Andrias, Kern, Oing, JJ.
Orders, Supreme Court, New York County (Debra A. James, J.), entered April 5, 2017, which denied defendants' motion to dismiss the complaint, and granted plaintiffs' motion for class certification for employees of defendant Prometal Construction, Inc. who worked at the "Ingersoll Houses Project," unanimously affirmed, without costs.
This action to recover for underpayment of prevailing wages required by the Federal Housing Act for a public works contract is not barred by collateral estoppel based on a prior determination by NYCHA on this issue (see Cox v. NAP Constr. Co., Inc., 10 N.Y.3d 592, 861 N.Y.S.2d 238, 891 N.E.2d 271 [2008] ).
Plaintiffs were not parties to the administrative proceeding before NYCHA, they did not have any right to participate in the proceeding before NYCHA and they were not in privity with an affected party (see ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 227, 928 N.Y.S.2d 647, 952 N.E.2d 463 [2011] ; Matter of Bleecker St. Inv., LLC v. Zabari, 148 A.D.3d 577, 50 N.Y.S.3d 332 [1st Dept. 2017] ).
Prometal's argument that this action is barred because NYCHA has primary jurisdiction over all prevailing wage violation claims is also unavailing. Although plaintiffs triggered the administrative review process by filing their initial complaint with NYCHA, plaintiffs were not limited to commencing an Article 78 proceeding to challenge NYCHA's determination. Indeed, the Court of Appeals has held that a party need not exhaust administrative remedies prior to bringing a private state action alleging underpayment of prevailing wages (see Cox, supra ).
Plaintiffs satisfied the conditions for class certification (see Stecko v. RLI Ins. Co., 121 A.D.3d 542, 995 N.Y.S.2d 13 [1st Dept. 2014] ; Dabrowski v. Abax Inc., 84 A.D.3d 633, 923 N.Y.S.2d 505 [1st Dept. 2011] ; Nawrocki v. Proto Constr. & Dev. Corp., 82 A.D.3d 534, 919 N.Y.S.2d 11 [1st Dept. 2011] ; Kudinov v. Kel–Tech Constr. Inc., 65 A.D.3d 481, 884 N.Y.S.2d 413 [1st Dept. 2009] ). Prometal argues that further discovery would enable it to show that the individuals that comprise the proposed class may not have been employed by it. However, it failed to adduce evidence that any of these individuals was not employed by it. Prometal's contention that this Court should decide the class certification motion according to the rigorous standard of analysis used by the federal courts in addressing class certification is in error (see Stecko, 121 A.D.3d at 543–544, 995 N.Y.S.2d 13 ). The threshold determination made in connection with class certification is not intended to be a substitute for summary judgment or trial (see Kudinov, 65 A.D.3d at 482, 884 N.Y.S.2d 413 ).