VANDEE v. SUIT KOTE CORPORATION (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the first and second ordering paragraphs and granting the motion and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs are members of a putative class of employees who allege that defendant, Suit–Kote Corporation, failed to pay them the prevailing wages required by article I, § 17 of the New York Constitution and section 220(3) of the Labor Law. Plaintiffs appeal and defendant cross-appeals from an order that denied plaintiffs' motion for class certification pursuant to CPLR article 9 and that denied defendant's cross motion for, in effect, summary judgment dismissing the amended complaint.

We agree with plaintiffs on their appeal that Supreme Court erred in denying their motion, and we therefore modify the order accordingly.  CPLR 901(a) sets forth five prerequisites to class certification.  Class certification “is appropriate only if all five of the requirements are met” (Ferrari v. Natl. Football League, 153 A.D.3d 1589, 1591, 61 N.Y.S.3d 421 [4th Dept. 2017] ), and the party seeking certification has the burden of establishing each requirement (see Kudinov v. Kel–Tech Constr. Inc., 65 A.D.3d 481, 482–483, 884 N.Y.S.2d 413 [1st Dept. 2009] ).  “Once the [CPLR 901] prerequisites are satisfied, the court must consider the [non-exclusive] factors set out in CPLR 902” in order to determine whether class certification should be granted (Rife v. Barnes Firm, P.C., 48 A.D.3d 1228, 1229, 852 N.Y.S.2d 551 [4th Dept. 2008], lv dismissed in part and denied in part 10 N.Y.3d 910, 861 N.Y.S.2d 270, 891 N.E.2d 305 [2008] ).

Here, the court erred in determining that plaintiffs failed to establish the first and second CPLR 901 prerequisites, numerosity and commonality.  Plaintiffs established the numerosity prerequisite by submitting evidence of approximately 350 class members at a minimum (see Dabrowski v. Abax Inc., 84 A.D.3d 633, 634, 923 N.Y.S.2d 505 [1st Dept. 2011];  Kudinov, 65 A.D.3d at 481, 884 N.Y.S.2d 413).  Plaintiffs established the commonality prerequisite because one common legal issue dominates the claims of all putative class members, i.e., whether similarly situated employees who worked on public projects were deprived of the prevailing wages to which they were entitled (see City of New York v. Maul, 14 N.Y.3d 499, 514, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010];  Cherry v. Resource Am., Inc., 15 A.D.3d 1013, 1013, 788 N.Y.S.2d 911 [4th Dept. 2005] ).  Contrary to defendant's contention, the fact that the amount of damages will vary among the putative class members does not prevent this lawsuit from going forward as a class action (see Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399, 998 N.Y.S.2d 729, 23 N.E.3d 997 [2014];  DeLuca v. Tonawanda Coke Corp., 134 A.D.3d 1534, 1536, 22 N.Y.S.3d 768 [4th Dept. 2015] ).

We reject defendant's alternative ground for denying the motion for class certification, namely, that plaintiffs failed to establish the remaining CPLR 901 prerequisites (see generally Weinberg v. Hertz Corp., 116 A.D.2d 1, 5–6, 499 N.Y.S.2d 693 [1st Dept. 1986], affd 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 [1987];  Ferrari, 153 A.D.3d at 1592, 61 N.Y.S.3d 421;  Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129, 144, 871 N.Y.S.2d 263 [2d Dept. 2008] ).  Contrary to defendant's further contention, the non-exclusive CPLR 902 factors weigh in favor of class certification.

We reject defendant's contention on its cross appeal that the court erred in denying its cross motion inasmuch as triable issues of fact exist with respect to whether defendant's payroll practices complied with Labor Law § 220(3) and the corresponding regulations.  Contrary to defendant's contention, its alleged failure to comply with 12 NYCRR 220.2(d) is relevant to whether its payroll practices complied with section 220(3).  Finally, contrary to defendant's further contention, the amended complaint is not preempted by the federal Employee Retirement Income Security Act (see HMI Mech. Sys., Inc. v. McGowan, 266 F.3d 142, 145 [2d Cir.2001] ).