The opinion
Rosario v Hallen Constr. Co., Inc.
2025 NY Slip Op 30089(U)
January 9, 2025
Supreme Court, New York County
Docket Number: Index No. 157141/2021
Judge: Emily Morales-Minerva
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 157141/2021
NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 01/10/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA PART 42M
Justice
-------------------X INDEX NO. 157141/2021
DANIEL ROSARIO, DEAN LEWIS, INDIVIDUALLY AND ON
MOTION DATE 05/15/2024
BEHALF OF ALL OTHER PERSONS SIMILARLY
SITUATED WHO WERE EMPLOYED BY THE HALLEN
CONSTRUCTION CO., INC. MOTION SEQ. NO. 002
Plaintiff,
- V - DECISION + ORDER ON
THE HALLEN CONSTRUCTION CO., INC.,
MOTION
Defendant.
-------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 47, 48, 49, 50, 51,
52,53,54, 55,56, 57, 58, 59,60,61,62,63,64,65,66,67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,
80,81,82,83, 84,85,86,87,88,89,90,91,92,93,94,95,96,97,98,99, 100,101,102,103,104,105,
106,107,108,109,110,111,112,113,114,115,116,117,118,119
were read on this motion to/for MISCELLANEOUS
APPEARANCES:
Virginia & Ambinder, LLP, New York, NY {Jack Newhouse, Esq.,
of counsel), for plaintiffs.
Rivkin Radler, LLP, Uniondale, NY (John K. Diviney, Esq., and
Greg Eric Mann, Esq., of counsel), for defendant.
EMILY MORALES-MINERVA, J.S.C.
Upon the foregoing documents, and oral argument held on in
Part 42M, 111 Centre Street, New York, NY, on January 07, 2024,
at 11:00 A.M., the Court determines as follows.
In this Labor Law action for failure to pay wages and
failure to pay overtime (see generally Labor Law§§ 191 and
633), plaintiffs DANIEL ROSARIO and DEAN LEWIS, individually,
and on behalf of others similarly situated (plaintiffs) move, by
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NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 01/10/2025
motion sequence no. 002, for an order certifying that this case
may proceed as a class action (see CPLR §§ 901, 902).
Defendant THE HALLEN CONSTRUCTION CO., INC. (Hallen Co.)
opposes the motion in its entirety. It argues broadly that
(1) the circumstances particular to the individual members
prevent the requisite commonality and typicality required for
class certification, and that (2) better methods than a class
action exist for the adjudication of this controversy.
In the alternative, subject to the court granting the
motion, Hallen Co. requests modification of plaintiffs' proposed
notice and publication order for class certification.
For the reasons discussed below, the court grants
plaintiffs' motion, and grants defendant's request for
modification of the proposed notice and publication order, on
plaintiffs' consent.
BACKGROUND
Defendant THE HALLEN CONSTRUCTION CO., INC. (Hallen Co.),
is a construction company whose principal business is performing
gas and electrical work in New York, New York. Plaintiffs
DANIEL ROSARIO and DEAN LEWIS, and putative class members, are
construction laborers and/or labor foremen (plaintiffs), who
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worked in those capacities for Hallen Co. from August 2015 to
the present.
Plaintiffs allege that, during said time, Hallen Co. had a
de facto policy and/or practice of requiring them to travel to
the employer's yard on workdays at or around 6:00AM to pick up
vehicles, load trucks, retrieve paperwork and/or obtain work
assignments (see NY St Cts Elec Filing [NYSCEF] Doc. Nos. 50-62,
Affirmations of Plaintiffs). Further, plaintiffs allege that
they would then drive from the yard to their project sites and,
at the end of the day, return to Hallen Co.'s yard before
heading home (see id.).
According to plaintiffs, these activities constituted work
for which they did not receive pay. Therefore, plaintiffs seek
"unpaid wages for: (ii) show-up time·at Hallen's yard;
(ii) travel time from Hallen's yard to the first work site, and
i) travel time from the work site back to Hallen's yard at
the end of the day" (NYSCEF Doc. No. 47, notice of motion,
exhibits B to N). However, Hallen Co. contends that it
compensated plaintiffs correctly and that no de facto policy
existed or exists in the company, requiring employees to engage
in the alleged activities without pay.
Consequently, plaintiffs DANIEL ROSARIO and DEAN LEWIS,
individually, and on behalf of others similarly situated,
commenced this action against Hallen Co., asserting causes of
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action for unpaid wages and unpaid overtime, pursuant to Labor
Law§§ 191 and 633. Now, by motion sequence no. 002, plaintiffs
move for an order, certifying that this case may proceed as a
class action (see CPLR §§ 901, 902).
New York State's class action mechanism is codified in
article 9 of the CPLR see L 1975, ch 207, § 1), which is "to be
construed liberally in favor of class certification" {see
Chernett v Sprue 1209, LLC, 200 AD3d 596, 598 [1st Dept 2021]
[citations omitted]). This is due to "the general command for
liberal construction of all CPLR sections see CPLR 104)" and
the Legislature's "intent[ion for] article 9 to . . . substitute
for the narrow class action legislation which preceded it" (City
of New York v Maul, 14 NY3d 499, 509 [2010]).
It follows that to prevail on class certification
plaintiffs need only satisfy "the minimum threshold that their
claim [is] not a sham" {Chua v Trim-Line Hitech Contr. Corp.,
225 AD3d 565, 565 [1st Dept 2024]; see also Teshabaeva v. Family
Home Care Servs. of Brooklyn & Queens, Inc., 220 AD3d 519, 520-
521 [1st Dept 2023)). Further, plaintiffs must establish -- by
competent evidence in admissible form (see Weinstein v Jenny
Craig Operations, Inc., 138 AD3d 546, 546 [1st Dept 2016]) --
the following prongs:
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1. the class is so numerous that joinder of
11
all members, whether otherwise required or
permitted, is impracticable [numerosity];
"2. there are questions of law or fact
common to the class which predominate over
any questions affecting only individual
members [commonality];
3. the claims or defenses of the
11
representative parties are typical of the
claims or defenses of the class
[typicality] ;
4. the representative parties will fairly
11
and adequately protect the interests of the
class [adequacy]; and
5. a class action is superior to other
11
available methods for the fair and efficient
adjudication of the controversy
[superiority] 11
(CPLR § 901; see also Maddicks v Big City Props., LLC 34 NY3d
116, 123 [2019] [stating section 901 covers "five [requisite]
factors - sometimes characterized as 'numerosity, commonality,
typicality, adequacy of representation and superiority'"],
quoting City of New York v Maul, 14 NY3d at 508).
Here, no dispute exists as to the merits of the claims for
purposes of certification. Also, no dispute exists that
plaintiff established numerosity or adequacy, pursuant to CPLR
§ 9 01 (a} {1 ) and {4 ) .
Therefore, the questions presented are whether plaintiffs
established (1) commonality -- that the questions of law or fact
common to the class predominate over questions affecting only
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individual members, (2) typicality that the claims or
defenses are typical of the class, so that the representative
parties also advance the interests of the absent class members,
and (3) superiority -- that class action litigation is superior
to other available methods of adjudicating the subject claims.
This court answers each of these questions in the
affirmative, as discussed, in turn, below.
Commonality
The commonality prerequisite "requires predominance of
common questions over individual questions, not identity or
unanimity of common questions, among class members 11 (Burdick v
Tonoga, Inc., 179 AD3d 53, 56 [3d Dept 2019], citing Ferrari v
National Football League, 153 AD3d 1589, 1591 [2017]). Further,
existing "question[s] peculiar to each individual [are]
·not fatal" to class action certification (City of New York v
Maul, 14 NY3d at 514 [internal quotation marks and citations
omitted; Burdick, 179 AD3d at 56]).
Key is the existence of a central issue that once
determined -- has a direct impact on the validity of each one of
the individual claims see Burdick, 179 AD3d at 56, citing Wal-
Mart Stores, Inc. v Dukes, 564 US 338, 350 [2011]).
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Applying this standard here, plaintiff has established
commonality. The crux of this action is the allegation that
Hallen Co. has a de facto policy or practice that resulted in
laborers and labor foreman engaging in unpaid work and overtime
from August 2015 until the present. Determination of this
common issue of fact is dispositive to the individual claims of
injury.
Further, individualized damage assessments based on the
alleged de facto policy or practice do not undermine commonality
(seegenerally Chua, 225 AD3d at 566 [1st Dept 2024)). The
difference in determining the amount, if any, of unpaid wages or
overtime, appears irrelevant to the main question whether such a
systemic practice exists.
The court finds unavailing Hallen Co.'s argument that
commonality is lost here because the determination of
plaintiffs' compensation depends on factors that must be
resolved in "mini-trials [sic] for each construction employee
and each workweek" (NYSCEF Doc. No. 69, memorandum of law in
opposition, p 21).
First, the argument is conclusively stated and sounds more
like an argument based on damages being individualized. Second,
the trial court decision upon which Hallen Co. relies for this
contention is clearly distinguishable from the facts alleged
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here (see Carni v Continental Home Loans, Inc., 44 Misc. 3d 788
[Sup Ct Nassau Cty 2014]).
In Carni, the trial court found against commonality where
the proposed class consisted of bank loan officers, alleging a
failure to pay overtime see id., at 796). Said "plaintiffs'
claims pertain[ed] to differently classified loan officers, in
different Continental locations, under different managers, who
performed duties inside and outside of their offices to varying
degrees in different way" (id. at 798 [citation omitted]).
Given those many differences, the court concluded that "common
legal and/or factual issues d[id] not predominate over [the)
individualized claims and [that) the interests of judicial
economy would not be served" in adjudicating the issues through
a class action (id. at 799).
In stark contrast, this case involves the allegation of a
singular de facto policy or practice involving laborers and
labor foremen reporting to, working at, and/or traveling to the
same yard, during a specific time (see generally Maddicks v Big
City Props., LLC, 34 NY3d at 125 [finding commonality where a
complaint addressed "harm effectuated through a variety of
approaches but within a common systemic plan"]).
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Typicality
To satisfy the typicality requirement, plaintiffs must show
that their "claims derive from the same practice or course of
conduct that gave rise to the remaining claims of other class
members and is based upon the same legal theory" (Kozak v.
Kushner Vil. 329 E. 9th St. LLC, 2024 NY App Div LEXIS 6244,
*5-6, 2024 NY Slip Op 05891 [1st Dept 2024] quoting Pludeman v
Northern Leasing Sys., Inc., 74 AD3d 420, 423 [1st Dept 2010}}.
Here, again, plaintiffs have satisfied their burden.
Plaintiffs allege having faced a systemwide denial of wages and
overtime at a particular work yard, as opposed to isolated
difficulties, and they seek the same relief. This shared fact
pattern gives rise to corresponding legal issues in the context
of the stated causes of action, pursuant to Labor Law§§ 191 and
633.
Further, as previously stated in the context of
commonality, individualized damage assessments based on the
alleged practice of unpaid wages "does not weigh substantially
against class certification" (Chua, 225 AD3d at 566, citing
generally Brown v Mahdessian, 206 AD3d 511, 512 [1st Dept
2022]; Weinstein v Jenny Craig Operations, Inc., 138 AD3d 546,
547 [1st Dept 2016]}.
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Superiority
Plaintiffs have also established that "a class action [on
this matter] is superior to other available methods for the fair
and efficient adjudication of the controversy" (CPLR § 901 [a]
[5]). This case involves allegations of unpaid wages and
overtime, and the controlling Appellate Division, has broadly
held that a class action is the "superior vehicle" for resolving
wage disputes, even where class members have'different work
histories (Rodriguez v. Tri-Borough Certified Home Care, Ltd.,
227 AD3d 557, at 558 [1st Dept 2024], citing ~Chua,225 AD3d
at 565; Lavrenyuk v Life Care Servs., Inc., 198 AD3d 569, 570
[1st Dept 2021], lv dismissed 38 NY3d 1021 [2022]).
This type of claim -- concerning allegations that a company
failed to pay laborers and labor foremen -- is "unlikely to
[otherwise] be litigated because the costs of individual cases
outweigh the possible damages . . . " (Andryeyeva v New York
Health Care, Inc., 33 NY3d 152, 183-184 (2019] [explaining New
York's statutory class certification in the context of class
certification motions on behalf of home healthcare aids], citing
Sperry v Crompton Corp., 8 NY3d 204, 213 (2007] [ "class actions
are designed.in large part to incentivize plaintiffs to sue when
the economic benefit would otherwise be too small, particularly
when taking into account the court costs and attorneys' fees
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typically incurred"]; Letter from Stanley Fink, June 2, 1975,
Bill Jacket, L 1975, ch 207 ["{article 9) will enable persons
similarly aggrieved to enforce existing substantive rights,
which presently go without redress solely because of the
financial impracticability of financing individual suits"]; 82
NY Jur 2d, Parties §254 ["The statutory criteria governing the
permissibility of class actions should be liberally construed so
as to allow for the adjudication of claims that would not be
economically litigable except by means of a class action"]).
Having found plaintiffs have satisfied the prerequisites of
CPRL § 901, the court turns to Hallen Co.'s request, in the
alternative, that plaintiffs modify the proposed notice and
publication order. On record, during oral arguments, the
parties consented to the court granting said request and issuing
an order directing plaintiffs to file the modified documents.
Accordingly, it is
ORDERED that motion (sequence no. 002) of plaintiffs DANIEL
ROSARIO and DEAN LEWIS, individually and on behalf of all other
persons similarly situation, is granted; it is further
ORDERED that plaintiffs shall submit a modify proposed
order and publication notice, in accordance with defendant
HALLEN CONSTRUCTION CO., INC.'s objections thereto as set forth
in defendant's memorandum of law in opposition, dated July 12,
2024, p 25 and 26 (NYSCEF Doc. No. 69); it is further
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ORDERED that plaintiffs shall file the proposed notice and
publication order with the court within 30 days of this order
with notice of entry; and it is further
ORDERED that plaintiffs shall serve defendants with notice
of this order with notice of entry within 10 days of such entry.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
1/9/2025
DATE
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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