DABROWSKI v. 20 (2025)

Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered on or about July 3, 2024, which denied defendants’ motion to decertify the class and dismiss the class action, unanimously affirmed, with costs.

Supreme Court providently denied the motion for class decertification because defendants were unable to demonstrate that class treatment is no longer appropriate.  The class was certified in July 2010, and this Court affirmed the certification order (see Dabrowski v. Abax Inc., 84 A.D.3d 633, 634–635, 923 N.Y.S.2d 505 [1st Dept. 2011]).  “CPLR 902 allows the trial court to decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inapposite” (City of New York v. Maul, 14 N.Y.3d 499, 514, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010];  see CPLR 902;  Matter of Colt Indus. Shareholder Litig., 77 N.Y.2d 185, 196, 565 N.Y.S.2d 755, 566 N.E.2d 1160 [1991]).  Here, the record fails to support defendants’ arguments.

Defendant Abax Incorporated's contention that it did not have public work contracts with the New York City Department of Housing Preservation and Development (HPD) is belied by the December 2004 contract that defendants submitted for this proposition (see De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 21 N.Y.3d 530, 538, 975 N.Y.S.2d 371, 997 N.E.2d 1223 [2013]).  Under that contract, Abax was to be paid from public funds, specifically, “from City Capital Expense Funds,” and if available, Abax could be paid with “Federal Funds under the Community Development Block Grant Program,” regardless of whether Abax performed lead-based paint abatement on publicly owned or privately owned property.

Furthermore, the primary objective of the contract was to fulfill HPD's legal mandate to protect public health.  The City Council has declared that the “existence of a lead-based paint hazard in any multiple dwelling where a child” under seven years old “resides ․ constitute[s] a condition dangerous to life and health” (Administrative Code of City of N.Y. § 27–2056.3).  The City Council also empowered HPD to “correct” any violation deemed “dangerous to human life and safety or detrimental to health” (Administrative Code of City of N.Y. § 27–2125[a], [d]).  That residential units in privately owned buildings are not used or accessed by the public is not dispositive, as the test to “determine whether a particular project is subject to the prevailing wage requirements of Labor Law § 220” must “be applied on a case-by-case basis” (De La Cruz, 21 N.Y.3d at 538, 975 N.Y.S.2d 371, 997 N.E.2d 1223).

As class certification is still appropriate, dismissal of the action is unwarranted.