The opinion
McMillan v Out-Look Safety LLC
2024 NY Slip Op 30336(U)
January 28, 2024
Supreme Court, New York County
Docket Number: Index No. 657577/2019
Judge: Andrea Masley
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. 657577/2019
NYSCEF DOC. NO. 270 RECEIVED NYSCEF: 01/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48
----------------------------------------------------------------------------------- X
CRAIG MCMILLIAN, EIAN MCMILLAN and VICTOR INDEX NO. 657577/2019
BALLAST,
Plaintiffs, MOTION DATE N/A
- V - MOTION SEQ. NO. 005
OUT-LOOK SAFETY LLC, RESTANI CONSTRUCTION
CORP., SAFEWAY CONSTRUCTION ENTERPRISES, DECISION+ ORDER ON
LLC, TRIUMPH CONSTRUCTION CORP., and ELECNOR MOTION
HAWKEYE, LLC,
Defendants.
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HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 005) 145, 146, 147, 148,
149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168,
169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, 189,
190, 191, 192, 193, 194, 195, 196, 197, 198,199,200,201,202,203,204,205,206,207,208,209,
210,211,212,213,214,215,216,217,218,219,220,221,223,224,225,226,227,228,229,230,
231,232,233,234,235,236,237,240,254,255,256,257,258
were read 1 on this motion to/for ORDER MAINTAIN CLASS ACTION
In motion sequence number 005, plaintiffs Craig McMillian, Eian McMillan and
Victor Ballast move to maintain the matter as a class action pursuant to CPLR 901.
This is an action by construction flaggers to recover prevailing wages. 2 Plaintiffs allege
claims for (i) breach of contract and (ii) unjust enrichment and quantum meruit against
1The court has read and where appropriate considered additional documents
mentioned in the parties' papers but omitted in this autogenerated caption. The court
has considered the letters filed after briefing closed only to the extent they contain "the
citation[s] of post-submission court decision[s] that [are] relevant to the pending issues."
(Commercial Division Rules, Rule 18; see NYSCEF 230, 254,256,257, letters.)
2Specifically, plaintiffs seek "an award of wages at the required prevailing wage rate,
along with daily overtime premiums, weekend premiums, supplemental benefits .... "
(NYSCEF 44, Amended Complaint [AC] at 19.) For brevity, the court will refer to the
relief sought as prevailing wages.
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defendants Out-Look Safety LLC (Out-Look), Restani Construction Corp. (Restani),
Safeway Construction Enterprises, LLC (Safeway), Triumph Construction Corp.
(Triumph), and Elecnor Hawkeye, LLC (Hawkeye). 3
Background
According to the complaint, plaintiffs worked as flaggers for Out-Look, with whom
the remaining defendants (general contractors) subcontracted to retain flagging services
for construction projects in New York City. (See NYSCEF 44, AC ,m 1, 18, 31-32.) The
general contractors' agreements with Consolidated Edison Company of New York, Inc.,
state and city public entities, or other contractors (collectively, public works contracts)
required general contractors to pay workers involved in public works projects prevailing
wages. (See id. ,m 35-36.) Specifically, the public works contracts allegedly provided:
4
"Where Contractor employs workers on sites where a permit to use or open a
street (including excavating the street) is required and New York City
Administrative Code Section 19-142, or its successor ... is applicable,
Contractor agrees that ... the prevailing scale of union wages shall be the
prevailing wage for similar titles as established by the Comptroller of the City of
New York pursuant to Section 220 of the New York State Labor Law ... paid to
3 Restani and Triumph's counsel, whose affirmations include arguments (NYSCEF 191,
Ruth Bogatyrow Kraft aff; NYSCEF 205, Michael R. Morano aff), are reminded that
affidavits "are reserved for a statement of the relevant facts; a statement of the relevant
law and arguments belong in a brief (i.e., a memorandum of law)." (Tripp & Co., Inc. v
Bank of NY(Del), Inc., 28 Misc 3d 1211[A], 2010 NY Slip Op 51274[U], *6 [Sup Ct, NY
County 2010], citing 22 NYCRR 202.8 [c].)
Counsel are reminded that (i) every citation to the record in motion papers must include
a corresponding NYSCEF number (Part 48 Procedure 5 [A]) and (ii) deposition
transcripts shall be submitted in their entirety with relevant portions highlighted and in
mini-script format. (Part 48 Procedure 5 [D].)
4Several defendants stipulated that relevant public works contracts required the
payment of prevailing wages pursuant to New York City Administrative Code Section
19-142 and Labor Law§ 220. (NYSCEF 164, Triumph stip ,i,i 4-5; NYSCEF 165,
Hawkeye stip ,i,i 1-3; NYSCEF 167, Safeway stip ,i,i 2-4.)
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those so employed, and Contractor shall pay that prevailing wage to workers so
employed."
(/d.,I37.)
In the breach of contract claim, plaintiffs allege that as third-party beneficiaries of
the public works contracts, they were entitled to prevailing wages but have not been
paid accordingly. ( See id. ,I,I 80-81.) In the unjust enrichment and quantum meruit
claim, plaintiffs allege that defendants failed to pay them the prevailing wage rates for
prevailing wage jobs and thus have been unjustly enriched. (Id. ,I 84.) They also allege
that defendants failed to pay the reasonable value of plaintiffs' services and thus
plaintiffs are entitled to relief under the doctrine of quantum meruit. (Id. ,I 89.)
Discussion
CPLR 901 (a), which "should be broadly construed" (City of NYv Maul, 14 NY3d
499, 509 [201 O] [internal quotation marks and citation omitted]), provides that a class
action may be maintained if:
"1. the class is so numerous that joinder of all members, whether otherwise
required or permitted, is impracticable; 2. there are questions of law or fact
common to the class which predominate over any questions affecting only
individual members; 3. the claims or defenses of the representative parties are
typical of the claims or defenses of the class; 4. the representative parties will
fairly and adequately protect the interests of the class; and 5. a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy."
"Once these prerequisites are satisfied, the court must consider the factors set
out in CPLR 902" (Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1st Dept 1998]):
"1. the interest of members of the class in individually controlling the prosecution
or defense of separate actions; 2. the impracticability or inefficiency of
prosecuting or defending separate actions; 3. the extent and nature of any
litigation concerning the controversy already commenced by or against members
of the class; 4. the desirability or undesirability of concentrating the litigation of
the claim in the particular forum; [and] 5. the difficulties likely to be encountered
in the management of a class action."
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(CPLR 902.) The plaintiff must establish by competent evidence the requirements set
forth in CPLR 901 and 902 for obtaining class certification. 5 (See Ackerman, 252 AD2d
at 191.) "The determination of whether or not a matter qualifies as a class action ...
rests within the sound discretion of the motion court." (Rabouin v Metro. Life Ins. Co.,
25 AD3d 349, 350 [1st Dept 2006].)
1. CPLR 901 6
Numerosity
"There is no mechanical test to determine whether ... numerosity ... has been
met, nor is there a set rule for the number of prospective class members which
must exist before a class is certified .... Each case depends upon the particular
circumstances surrounding the proposed class and the court should consider the
reasonable inferences and commonsense assumptions from the facts before it."
( Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129, 137-38 [2d Dept 2008] [internal
quotation marks and citations omitted].)
Here, plaintiffs have identified 75 Out-Look employees who worked at the
general contractors' projects. (NYSCEF 179, class list at 1-3.7) Plaintiffs submit a
5 Contrary to defendants' assertation (NYSCEF 213, Out-Look & Safeway memo at 10
[NYSCEF pagination]), New York law does not require that CPRL 901 (a) prerequisites
be met by the preponderance of the evidence. ( See Banasiak v Fox Indus., Ltd., 2016
NY Misc LEXIS 962, 2016 NY Slip Op 30501 [U], *3 [Sup Ct, NY County 2016] [rejecting
application of more stringent evidentiary standard at class certification stage as is found
in Federal Rules of Civil Procedure rule 23].) Instead, the preponderance of the
evidence standard is applied by federal courts. (See In re Petrobras Sec., 862 F3d 250,
260 [2d Cir 2017].)
6The court rejects Hawkeye's request for an evidentiary hearing (NYSCEF 214,
Hawkeye memo at 20 n 7 [NYSCEF pagination]) as the parties submitted evidence in
support of their arguments including party deposition transcripts and defendants'
stipulation. (Cf. Chimenti v Am. Express Co., 97 AD2d 351, 352 [1st Dept 1983] ["It was
an abuse of discretion to certify the class solely on the basis of the pleadings and the
[conclusory] affidavit by plaintiff's counsel"].)
7Brent E. Pelton, plaintiffs' counsel, states that plaintiffs compiled the list based on
Restani sign in sheets, Out-Look's internal Smartsheets system and timesheets, and
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deposition transcript where Paul Tantillo 8 testified that Out-Look's employees have not
been paid prevailing wages. (NYSCEF 154, Tantillo depo at 51 :6-18.) Plaintiffs have
demonstrated a class of 75 employees, whose joinder would be impracticable and thus
the numericity prerequisite is met. (See Pesantez v Boyle Envtl. Servs., Inc., 251 AD2d
11, 11-12 [1st Dept 1998] [class of 80 workers]; Dabrowski v Abax Inc., 84 AD3d 633,
634 [1st Dept 2011] [class of 50 to 100 laborers].)
Defendants argue that plaintiffs' evidence is insufficient to meet the numericity
requirement because plaintiffs have not identified each class member but instead
aggregates across entities that contracted with Out-Look and without demonstrating
difficulty of joinder of each class member. However, defendants proffer no authority to
support their proposition that the numerosity requirement is defendant specific. Instead,
courts routinely analyze whether a class is numerous in the context of an entire action,
not per defendant. (See e.g. Juarez v USA Roofing Co. Corp., 2017 NY Misc LEXIS
2246, 2017 NY Slip Op 31239[U], *9 [Sup Ct, NY County 2017] [analyzing numericity in
context of an entire action by workers to collect prevailing wages where defendants
were two subcontractors and five general contractors]; Ansoumana v Gristede's
Operating Corp., 201 FRO 81, 85-86 [SD NY 2001] [same, except defendants were
several labor agencies and their clients who used plaintiffs' delivery services].)
August 2020 email discussion between Restani and Out-Look. (NYSCEF 148, Pelton
aff ,i 39.) The underlying records follow the list. (NYSCEF 179, class list at 4-42.)
8Tantillo was the corporate representative for Out-Look. (NYSCEF 148, Pelton aff ,i
14.)
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Defendants next argue that the numericity prerequisite is not met because there
is no evidence that plaintiffs and the class members, by virtue of their job duties, were
flaggers entitled to prevailing wages.
Pursuant to Labor Law§ 220, the New York City Comptroller sets prevailing
wage schedules and trade classifications on public works projects within New York city.
( See Labor Law§ 220 [3] [c], [5] [e]). "The Comptroller's prior interpretations of what
specific types of flagger duties were entitled to prevailing wages under Labor Law§ 220
were neither irrational nor unreasonable, and we therefore defer to those
interpretations." (Herman v Jud/au Contr., Inc., 204 AD3d 496, 496 [1st Dept 2022]
[citations omitted].)
"'When the worker assigned to those duties is not on a construction work site,
and is being utilized to alleviate vehicular congestion by directing the flow of
street traffic away from the vicinity of the construction site, that worker is
performing traffic control duty. Accordingly, the worker does not fall within the
purview of Labor [Law] Section 220. However, when a worker is utilized adjacent
to, or in close proximity to the construction work site, protecting the public from
the inherent dangers on and about that site, safeguarding the work crew from
street traffic, directing public traffic away from the site, and directing the
movement of construction equipment in, on, and off the site, that worker is
performing flagging duties which fall within the job specifications of the
construction laborer."'
(Little v Carlo Lizza & Sons Paving, Inc., 2017 US Dist LEXIS 86712, *12 [SD NY, June
6, 2017], quoting May 21, 1998 letter from Bureau of Labor Law to Director Mayor's
Office of Construction)
"'This memo is being issued for purposes of clarification. When a worker is
assigned as a full-time "flag person" and his/her duties are not primarily on a
construction work site, but such person is primarily assigned to alleviate vehicular
congestion by directing the flow of the street traffic away from the vicinity of the
construction site, the worker is performing traffic control duty. Accordingly the
worker does not fall within the purview of Labor Law Section 220 ... However,
when a worker is utilized on the construction work site, protecting the public from
the inherent dangers on and about that site, safeguarding the work crew from the
street traffic, and directing the movement of construction equipment in, on, and
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off the site, that worker is performing flagging duties which fall within the job
description of laborer."'
(Id., quoting Comptroller's Prevailing Wage Memorandum, March 13, 2001.)
Whether plaintiffs and the class members performed "flagging duties which fall
within the job description of laborer" and were entitled to prevailing wages is a contested
issue which the court will not resolve on a class certification motion. However, at this
stage, plaintiffs have provided sufficient evidence tending to show that they performed
flagging duties that might fall within the job description of flagger. (See NYSCEF 150,
C. McMillian depo at 109:21-110:17, 113:19-114:11, 115:5-8 [work included putting
cones, making sure that no cars are entering construction site, making sure that cones
directing where trucks back up are in correct spots, and sometimes digging dirt with
shovel]; NYSCEF 151, E. McMillan depo at 218:6-17, 393:19-22, 394:15-20 [work
included helping set up and take down equipment, making sure that vehicles do not
enter construction site and that construction equipment makes it safely into and out of
construction zone]; NYSCEF 152, Ballast depo at 226:23-228:23 [work included
escorting machinery up and down streets, being in worksite, sweeping, shoveling,
putting black tar on metal tops].) Plaintiffs' evidence shows that the class members also
performed flagging duties that might fall within the job description of laborer. (See
NYSCEF 154, Tantillo depo at 25:18-26:13 [Out-Look's employees were sent to job
sites to direct traffic and maintain construction flow of traffic around job site].) Any
evidence suggesting that plaintiffs and the class members performed duties that do not
fall within the flagger's job description raises an issue of fact and does not prevent class
certification. Indeed, a class certification motion "is not intended to be a substitute for
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summary judgment or trial." (/sufi v Prometal Constr., Inc., 161 AD3d 623, 624 [1st
Dept 2018] [citation omitted].)
Finally, because plaintiffs proffered sufficient evidence to demonstrate
numerosity, defendants' reliance on Feder v Staten Is. Hosp., 304 AD2d 470, 471 [1st
Dept 2003] is misplaced. (Id. ["mere fact that the defendants process thousands of
requests for medical records every year is speculative, and thus, insufficient to
establish" numerosity of class of customers who were charged fees in violation of Public
Health Law].)
Commonality/ Predominance
"When individualized proof is required for the claims alleged or individual factual
questions with respect to individual class members preponderate, commonality is
lacking." (Pludeman v N. Leasing Sys., Inc., 74 AD3d 420, 422-23 [1st Dept 2010]
[citations omitted].)
"However, the rule requires predominance not identity or unanimity among class
members .... Thus, commonality is not merely an inquiry into whether common
issues outnumber individual issues but rather whether the use of a class action
would achieve economies of time, effort, and expense, and promote uniformity of
decision as to persons similarly situated."
(Id. [internal quotation marks and citations omitted].)
Plaintiffs have met the commonality prerequisite. In this action, one common
issue of fact predominates, namely, "did defendants utilize these workers in roles that
would have entitled them to prevailing wages or did they perform purely traffic control as
defined by the Comptroller?" (Moran v JLJ IV Enters., Inc., 2020 NY Misc LEXIS 2799,
2020 NY Slip Op 31924[U], *7 [Sup Ct, NY County 2020]; see also Lewis v Hal/en
Constr. Co., Inc., 193 AD3d 511, 512 [1st Dept 2021] ["commonality and typicality are
established by the fact that all the claims arise from defendant's alleged failure to pay
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prevailing wages" (citations omitted)]; Stecko v RLI Ins. Co., 121 AD3d 542, 543 [1st
Dept 2014] ["The commonality prerequisite is met since all members of the class allege
that defendant ... failed to pay the required prevailing wage and supplemental benefits
owed to them" (citation omitted)].)
Defendants argue that because the court would need to engage in individual
analysis to determine each class member's specific duties and the amount of time the
laborer worked as such, individual issues would predominate.
The court disagrees. "Certainly, the tasks that each individual flagger might have
been required to perform might differ at each site, but the overarching questions are
similar enough to warrant class certification." (Moran, 2020 NY Slip Op 31924[U], *7.)
Although this matter may ultimately involve individual issues of proof, the issues subject
to generalized proof predominate. (See Borden v400 E. 55th St. Assoc., L.P., 105
AD3d 630, 631 [1st Dept 2013] ["The need to conduct individualized damages inquiries
does not obviate the utility of the class mechanism for this action, given the predominant
common issues of liability" (citations omitted)]; Moses v Consol. Edison Co. of New
York, Inc., 2023 WL 2734331, at *5 [SD NY, Mar. 31, 2023, No. 18-CV-1200 (ALC)]
["The necessity of determining how much each flagger worked in no more than two
roles will not take an inordinate amount of time, nor will it distract from the common
issues"].)
Typicality
Plaintiffs' claims are typical of those of the class because the claims derive from
the same alleged practice of depriving workers of prevailing wages and are based on
the same legal theories. ( C.H. v Columbia Grammar & Preparatory Sch., 204 AD3d
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601, 601 [1st Dept 2022] [plaintiff's claims "are typical of those in the class ... if they
derive[] from the same practice or course of conduct that gave rise to the remaining
claims of other class members and [are] based upon the same legal theory" [internal
quotation marks and citation omitted].)
Even if general contractors employed different supervision and control practices,
as defendants argue, these practices are not at issue. Rather, at issue are the pay
practices and class members' job duties. For that reason, the court is not persuaded by
Hawkeye's argument that because each plaintiff worked at Hawkeye's projects only
once or twice, plaintiffs' claims are not typical. 9
Adequacy of Representation
"A class representative acts as principal to the other class members and owes
them a fiduciary duty to vigorously protect their interests." (Rochester v Chiarella, 65
NY2d 92, 100 [1985] [citations omitted].) "The factors to be considered in determining
adequacy of representation are whether any conflict exists between the representative
and the class members, the representative's familiarity with the lawsuit and his or her
financial resources, and the competence and experience of class counsel." (Ackerman,
252 AD2d at 202 [citations omitted].)
Plaintiffs' claims are typical of those of the class, and thus plaintiffs and the class
members share a common goal in this litigation. Under such circumstances, there is no
conflict of interest. (Griffith v W. 171 Assoc., LP, 2019 NY Misc LEXIS 558, 2019 NY
Slip Op 30322[U], *7-8 [Sup Ct, NY County 2019] [holding that no conflict of interest
9Tantillo testified that Hawkeye is one of Out-Looks largest clients. (NYSCEF 154,
Tantillo depo at 39:7-16.) Accordingly, at this stage, the court rejects Hawkeye's
argument that it is not a proper defendant.
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existed where named plaintiffs' claims were typical of those of class and they shared
common goal].) The mere fact that Ballast is a plaintiff in a prevailing wage class action
in federal court 10 is insufficient to show any conflict. Further, plaintiffs have
demonstrated familiarity with the lawsuit in their deposition testimony. Their litigation
costs are advanced. (See NYSCEF 148, Pelton aff ,i 6.) Finally, there is no doubt as to
the competence and experience of the class counsel. ( See id. ,i,i 2-8 [discussing Pelton
Graham LLC's extensive experience with wage-and-hour litigation].)
The court rejects defendants' argument that Ballast and E. McMillan's criminal
convictions 11 make them inappropriate representatives. ( See Adams v Bigsbee
Enterprises, Inc., 53 Misc 3d 1210(A) [Sup Ct, NY County 2015] ["Courts that have
disallowed prospective plaintiffs on the basis of prior convictions have done so only
where a clear nexus existed between the conviction and the class claims ... or where
the criminal conduct bears directly on the proposed representative's honesty, credibility
and integrity" (internal quotation marks and citations omitted)].) However, because C.
McMillian's conviction of fraud in the first degree for cashing a bad check casts doubt on
his honesty and credibility, he is not an adequate representative. (NYSCEF 193, C.
McMillian depo at 17:1-10, 19:24-20:8; see Pena v Taylor Farms Pac., Inc., 305 FRO
197, 216 [ED Cal 2015] [individual convicted of identity theft was not adequate class
representative].)
10 Ballast v Workforcel Inc., Index No. 20-cv-3812 (SD NY).
11Ballast testified that he was convicted of possession with intent distribute of a
controlled substance in 1989 and of felony possession of a firearm in 1998 or 1999
(NYSCEF 208, Ballast depo at 22:6-13, 24:2-5.) E. McMillan testified that he was
convicted of disorderly conduct. (NYSCEF 211, E. McMillan depo at 19:9-22.)
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Superiority
The court finds that plaintiffs have made an adequate showing of superiority
under the particular facts and circumstances of this action. Indeed, "a class action is
the superior vehicle for resolving wage disputes since the damages allegedly suffered
by an individual class member are likely to be insignificant, and the costs of prosecuting
individual actions would result in the class members having no realistic day in court."
(Lewis, 193 AD3d at 512 [internal quotation marks and citations omitted].)
2. CPLR 902
The CPLR 902 factors weigh in favor of class certification. There is no indication
that the class members have any interest in individually controlling the prosecution of
separate claims. Although the parties identify three other ongoing prevailing wage
matters in which plaintiffs' counsel is involved, 12 plaintiffs' counsel avers that "[n]one of
[these] matters have defendants in common with the present matter, excepting the
Hal/en matter, in which Out-Look Safety LLC is a defendant" and that "[n]one of the
groups of plaintiffs in any of [these three] matters overlap with the proposed class in the
present matter." (NYSCEF 226, Pelton aff ,m 2-5.) Finally, given that the class
members worked on worksites in New York city, litigation in this forum is desirable.
3. Class Definition
Plaintiffs seek to maintain the class of "all persons employed by Out-Look Safety
LLC at any time since April 16, 2018 through the present who worked as non-union
construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects requiring
Moses v Consolidated Edison Company of New York, Index No. 18-cv-1200 (SD NY),
12
Ballast v Workforcel Inc., Index No. 20-cv-3812 (SD NY), and Brown v The Hal/en
Construction Co., Index. No. 657160/2021 (Sup Ct, NY County).
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the payment of prevailing wages in New York City." (NYSCEF 145, notice of motion.) 13
Defendants argue that plaintiffs propose an impermissible fail-safe class definition
because it refers to flaggers.
A proposed class may not be a fail-safe class, that is, one "whose membership
can only be ascertained by a determination of the merits of the case because the class
is defined in terms of the ultimate question of liability." (Hicks v T.L. Cannon Corp., 35 F
Supp 3d 329, 356 [WO NY 2014] [internal quotation marks and citation omitted].) A fail-
safe class is improper because it "shields the putative class members from receiving an
adverse judgment." (Hardgers-Powe/1 v Angels in Your Home LLC, 330 FRO 89, 101
[WO NY 2019] [citation omitted].)
The court disagrees that the reference to flaggers in the class definition is
impermissible. The question of liability turns on inter alia whether plaintiffs and the
class members were "performing flagging duties which fall within the job description of
laborer." (Little, 2017 US Dist LEXIS 86712, *12, quoting Comptroller's Prevailing Wage
Memorandum, March 13, 2001.) Indeed, "the pivotal question is not how defendant
characterized [the class members], but whether the nature of the work they actually
performed required payment of prevailing wages." (Herman, 204 AD3d at 496.)
The court finds unpersuasive defendants' attack on the proposed class definition
to the extent that the definition includes any person who was (i) employed by Out-Look
since April 16, 2018 through the present, (ii) working at a specific job with a specific
general contractor, and (iii) not member of a labor union. No ultimate finding on the
13Plaintiffs state that they have chosen April 16, 2018 as a cutoff date because Out-
look's initial corporate filing was made April 16, 2018. (NYSCEF 147, plaintiffs' memo
at11n1.)
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merits is required to ascertain membership in a class so defined. Indeed, similar class
definitions have been approved. (Moran, 2020 NY Slip Op 31924[U], *8 [Sup Ct, NY
County] [class of "all non-union employees ... who worked as flaggers, flagpersons,
and/or pedestrian crossing guards on any of (defendant's) public work sites in New York
City at any point between January 1, 2014 and February 8, 2019"]; Herman, Index No.
652249/2017, NYSCEF 84, Order at 2 [class of "all persons employed by Defendant or
subcontracted by Defendant ... at any time from April 26, 2011 through the present who
worked as non-union flaggers on public works projects in the State on New York"].)
However, whether the public works contracts required the payment of prevailing
wages on subject projects is among the ultimate issues of liability. Accordingly, the
court amends class definition as follows: "all persons employed by Out-Look Safety LLC
at any time since April 16, 2018, through the January 28, 2024, who worked as non-
union construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects."
(Henix v Liveonny, Inc., 2019 NY Misc LEXIS 2680, 2019 NY Slip Op 31444[U], *13
[Sup Ct, NY County 2019] ["court may exercise its discretion to amend the class
definition"])
4. Merits
On a class certification motion the court considers the merits only to ensure that
"on the surface there appears to be a cause of action which is not a sham." (Pludeman,
74 AD3d at 422.) At this stage, analysis of merits "is not intended to be a substitute for
summary judgment or trial." (Kudinov v Kel-Tech Constr. Inc., 65 AD3d 481,482 [1st
Dept 2009].)
The court again rejects defendants' argument that by nature of their job duties,
plaintiffs were not entitled to prevailing wages and thus their claims are meritless. At
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this stage, plaintiffs have sufficiently demonstrated that plaintiffs and the class members
performed flagger duties that might fall within the relevant job description. (See supra at
6-8.)
Defendants next contend the breach of contract claim is meritless because
plaintiffs and the class members are not general contractors' employees and thus are
not third-party beneficiaries of the public work contracts, which require the payment of
prevailing wages. The court disagrees. "[T]he employees of the subcontractor are
third-party beneficiaries of the prevailing wage promise in the prime contract and should
be permitted to allege that the general contractor breached that obligation." (Wrobel v
Shaw Envtl. & Infrastructure Eng'g of NY, P.C., 56 Misc 3d 798, 805 [Sup Ct, NY
County 2017] [denying motion to dismiss breach of contract claim, which was asserted
by subcontractors' employees against prime contractor and based on prime contract's
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prevailing wage clause], affd 166 AD3d 520 [1st Dept 2018].) 14 Thus, plaintiffs' breach
of contract claim is not a sham .15
The court has considered all other arguments made by all parties and finds that
they do not change the outcome.
Accordingly, it is
ORDERED plaintiffs motion is granted, to the extent that that plaintiffs' claims in
the amended complaint are certified as a CPLR 901 class action on behalf of a class
defined as: all persons employed by Out-Look Safety LLC at any time since April 16,
2018, through January 28, 2024, who worked as non-union construction flaggers on
Restani, Safeway, Triumph and/or Hawkeye projects; and it is further
ORDERED that Victor Ballast and Eian McMillan are certified as class
representatives; and it is further
ORDERED that Pelton Graham LLC is appointed class counsel; and it is further
ORDERED that class counsel shall amend Notice of Pendency of Class Action
(NYSCEF 184) in accordance with this decision and submit it for the court's approval
14 In Barragan-Aquino v E. Pot1 Excavation & Util. Contractors, Inc., 2014 WL 1117269,
*8 (ED NY, Mar. 18, 2014, No. 13-CV-343 [SJF] [ARL]), the court held that
subcontractor' employees did not have the right, as third-party beneficiaries, to sue the
general contractor for unpaid prevailing wages under the prime contract. However, this
court "concludes that the better-reasoned authority is that of the New York state courts,
which, as far as this Court has been able to determine, have uniformly allowed the
employees of subcontractors on New York public works projects to assert third-party-
beneficiary claims against the general contractor for breach of its contractual obligation,
as mandated by Section 220 of the NYLL, to ensure the payment of prevailing wages to
all workers on the project." (So/auk v Eur. Copper Specialties, Inc., 2019 US Dist LEXIS
81267, *30 [SD NY, May 2, 2019, No. 14-cv-8954 (OF)].)
15The issue of whether general contractors jointly employed plaintiffs and the class
members need not be addressed at this time because even absent employment
relationships, plaintiffs' claims are not a sham. (Wrobel, 56 Misc 3d at 805.) Similarly,
at this stage, the court need not address the issue of whether joint and several liability
of defendants' is sufficiently supported by the record.
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(via NYSCEF and email to SFC-PART48@nycourts.gov) within 7 days of the date of
this decision; 16 and it is further
ORDERED that defendants shall provide to plaintiffs via email the names,
addresses, phone numbers, and email addresses of all potential class members who
worked as a flagger from April 16, 2018, through January 28, 2024, within 20 days of
this decision in Microsoft Word or Microsoft Excel format; and it is further
ORDERED that plaintiffs' request for defendants to disclose social security
numbers for those class members whose Notices of Pendency of Class Action are
returned as undeliverable without a forwarding address is denied, and plaintiffs may
request the court to reconsider if and when any such notices are so returned and the
parties cannot agree to a remedy; and it is further
ORDERED that class members may exclude themselves from the class by
sending a written request to class counsel within 30 days from mailing of the Notice of
Pendency of Class Action.
1/28/2024
DATE ANDREA MASLEY, J.S.C.
~
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
16 Defendants' requested amendments to the Notice of Pendency of Class Action are
rejected as they are likely to confuse class members. Specifically, defendants request
that the notice state that "[d]efendants claim the crossing guards sole duty was
alleviating vehicular congestion by directing the flow of street traffic away from the
vicinity of the construction site, which is traffic control duty, and that their duties were
not on a construction site and therefore the Plaintiffs are not owed any wages and this
action should not proceed as a class action" and warns that putative plaintiffs "may be
liable for attorneys' fees if the action is dismissed or [p]laintiffs lose at trial." (NYSCEF
213, Out-Look & Safeway memo at 30.)
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