GALDAMEZ v. John Doe Bonding Companies 1 through 3, Defendants. (2008)

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 23, 2006, which granted plaintiffs' motion to certify a class in an action to recover the prevailing rate of wages and supplemental benefits pursuant to Labor Law § 220, and for leave to prosecute the action on behalf of the class, unanimously affirmed, without costs.

 The court did not improvidently exercise its discretion in holding that plaintiffs met their burden of demonstrating the prerequisites for class action certification under CPLR 901 and 902 (see Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191, 683 N.Y.S.2d 179 [1998] ).   Contrary to defendants' contention, plaintiffs sufficiently established that the class was so numerous that joinder of all members was impracticable (see Pesantez v. Boyle Envtl. Servs., 251 A.D.2d 11, 673 N.Y.S.2d 659 [1998];  see also Robidoux v. Celani, 987 F.2d 931, 935-936 [1993] ), and the court properly considered affidavits from several members of the proposed class submitted on reply since the affidavits were in response to matters raised in defendants' opposition (see Ticor Tit. Guar. Co. v. Bajraktari, 261 A.D.2d 156, 157, 689 N.Y.S.2d 95 [1999] ).   Furthermore, to the extent the motion for class certification was untimely, the court providently exercised its discretion in deeming it timely since the delay in moving was largely the result of defendants' conduct during discovery (see Caesar v. Chemical Bank, 118 Misc.2d 118, 121, 460 N.Y.S.2d 235 [1983], affd. 106 A.D.2d 353, 483 N.Y.S.2d 16 [1984], mod. on other grounds 66 N.Y.2d 698, 496 N.Y.S.2d 418, 487 N.E.2d 275 [1985] ).

We have considered defendants' remaining contentions and find them unavailing.