In re Papantoniou ex rel. All Other Persons Similarly Situated Who Are Employed By V. Barile Inc.
| Decision Date | 30 October 2015 |
| Docket Number | Index No. 101057/2014 |
| Citation | 2015 NY Slip Op 32211 (U) |
| Court | New York Supreme Court |
| Parties | GEORGE PAPANTONIOU, individually and on behalf of all other persons similarly situated who are employed by V. BARILE INC. d/b/a V. BARILE FIRE PROTECTION CO., V. BARILE ELECTRICAL CONTRACTING, INC., and/or their affiliates, subsidiaries, and parent companies with respect to certain Public Works Projects awarded by the CITY OF NEW YORK, the NEW YORK CITY HOUSING AUTHORITY, and OTHER GOVERNMENTAL ENTITIES, Plaintiffs v. V. BARILE INC. d/b/a V. BARILE FIRE PROTECTION CO., V. BARILE ELECTRICAL CONTRACTING, INC., and/or their affiliates, subsidiaries, and parent companies, FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and JOHN DOE BONDING COMPANIES, Defendants |
DECISION AND ORDER
I. BACKGROUND
This action claims that plaintiff and other similarly situated employees of defendants were not paid the prevailing wages and supplemental benefits for work performed on public work projects pursuant to contracts by V. Barile Inc., V. Barile Electrical Contracting, Inc., and their affiliates with various governmental entities. They include the New York City Housing Authority (NYCHA), the New York City Transit Authority, and the New York City Department of Environmental Protection and Department of Corrections. Plaintiffs move to join Denis Ramos as a named plaintiff and class representative, C.P.L.R. § 1002(a); to amend their complaint to add claims by him as a class representative, C.P.L.R. § 3025(b); and for class certification. C.P.L.R. §§ 901, 902. Plaintiffs propose a class - defined as all individuals employed by V. Barile Inc. d/b/a V. Barile Fire Protection Co. and V. Barile Electrical Contracting, Inc., who performed construction work and all work incidental thereto from January 2006 through the present, excluding any clerical, administrative, professional, or supervisory employees. Aff. of Jack L. Newhouse ¶ 1.
The proposed class alleges four claims for relief against defendants. (1) They breached public works contracts to pay prevailing wages and supplemental benefits. (2) They failed to pay the prevailing wages, supplemental benefits, and overtime compensation timely as mandated New York Labor Law §§ 191 and 220, in. violation of New York Labor Law §§ 190, 198, and 198(1-a). (3) Defendant Fidelity and Deposit Company of Maryland as a surety is liable for payment of the prevailing wages and supplemental benefits not paid to the plaintiff class pursuant to the terms of the Fidelity and Deposit Company bonds. (4) Defendant John Doe Bonding Companies as sureties are liable for payment of the prevailing wages and supplemental benefits not paid to the plaintiff class pursuant to the terms of these companies' bonds.
Fidelity and Deposit Company opposes plaintiffs' joinder of Ramos, amendment to the complaint, and class certification and cross-moves for summary judgment dismissing the complaint against this defendant. C.P.L.R. § 3212(b). Fidelity and Deposit Company maintains that neither the original named plaintiff Papantoniou nor Ramos is an adequate class representative, because neither demonstrates a claim against defendants. In particular, Fidelity and Deposit Insurance Company urges that plaintiffs' breach of contract claims fall under the federal Davis Bacon Act, 40 U.S.C. §§ 3141-48, which proscribes a private right of action to enforce contracts, directly or indirectly, for payments of prevailing wages according to federal schedules. See Cox v. NAP Constr. Co., Inc., 10 N.Y.3d 592, 607 (2008). Fidelity and Deposit Company opposes plaintiffs' joinder of Ramos and amendment of the complaint on the further ground of prejudice, claiming plaintiffs' delay in seeking to add Ramos as a named plaintiff, despite knowing the original named plaintiff Papantoniou was an inadequate class representative, will cause additional legal expenses. For the purpose of these motions, the parties stipulate to the authenticity and admissibility of contracts, prevailing wage schedules, and payroll records presented to support the motion and cross-motion.
II. AMENDMENT OF THE COMPLAINT
C.P.L.R. § 3025(b) permits amendments to the complaint as long as they do not unfairly surprise or otherwise substantially prejudice defendants, and the proposed claims for relief, as alleged, are meritorious. A.L. Eastmond & Sons, Inc. v. Keevily, Spero-Whitelaw, Inc., 107 A.D.3d 503, 503 (1st Dep't 2013); Kocourek v. Booz Allen Hamilton Inc., 85 A.D.3d 502, 504 (1st Dep't 2011); Fellner v. Morimoto, 52 A.D.3d 352, 353-54 (1st Dep't 2008). Plaintiffs bear the burden to demonstrate the merits of their proposed claims through admissible evidence. JPMorgan Chase Bank, N.A. v. Low Cost Bearings NY Inc., 107 A.D.3d 643, 644 (1st Dep't 2013); Greentech Research LLC v. Wissman, 104 A.D.3d 540, 541 (1st Dep't 2013); Yuko Ito v. Suzuki, 57 A.D.3d 205, 208 (1st Dep't 2008); Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 355 (1st Dep't 2005). See Sepulveda v. Daval, 70 A.D.3d 420, 421 (1st Dep't 2010).
Plaintiff George Papantoniou attests to his employment with V. Barile, Inc., doing business as V. Barile Fire Protection Co., and with V. Barile Electrical Contracting, Inc., from 2001 until 2011, on various public works projects at identified sites. Newhouse Aff. Ex. H ¶¶ 2-3. He alleges that he was paid only as an alarm technician despite performing an electrician's work, including pulling wires and installing electrical panels, controls, motors, and light fixtures; running pipes; performing work on valves and thermal couplings; and conducting hydrostatic tests and fire alarm and sprinkler inspections. Id. ¶¶ 5, 8-9.
Proposed plaintiff Denis Ramos attests that he worked for defendant employers from 2002 to 2009, on public works projects at identified sites, where he was pulling wires, installing electrical panels, running pipes, changing valves, sprinklerheads, and thermal couplings, and performing underground work and hydrostatic tests. Id. Ex. I ¶¶ 2-3, 5. His tasks also included installing dry pipe valves and pumps, pre-action systems, and fire hose cabinets; repairing Siamese connections; working on standpipe systems; and conducting fire alarm and sprinkler inspections. Id. ¶ 5. While he worked on different projects from Papantoniou, both Ramos and Papantoniou worked on public works projects performing construction work and work incidental to construction work within the scope of the proposed classwide claims.
Finally, Ramos attests that his supervisors instructed him to identify his trade classification as an alarm technician or plumber on invoices for the NYCHA projects, his rate of pay did not depend on the type of work performed, and he was not paid the prevailing wage and benefits. Id. ¶¶ 7-8, 13. Three additional employees attest to defendants' instructions to identify their trade classification as a fire alarm technician or plumber despite their performing electrical installation and inspection work. Id. Exs. J, K, and L.
Fidelity and Deposit Company insists that neither Papantoniou nor Ramos demonstrates a valid claim against any defendant because neither plaintiff identifies which corporation he worked for and thus whether Fidelity and Deposit Company issued bonds to that employer. Nevertheless, Fidelity and Deposit Company concedes that both Papantoniou's and Ramos's allegations specifically identify V. Barile Inc. and thus Papantoniou's claims and Ramos's proposed claims are against that entity at minimum, to which Fidelity and Deposit Insurance Company issued bonds for public works projects at sites where plaintiffs were employed.
Fidelity and Deposit Company's further basis for denying amendment and dismissing the action is its exclusive reliance on the prevailing wage schedules under the Davis Bacon Act. 40 U.S.C. §§ 3141-48. First, these contracts govern only the contracts between plaintiffs' employers and NYCHA and only for projects that were federally funded, which Fidelity and Deposit Company fails to specify. Even under those contracts, the federal schedules do not negate Papantoniou's and Ramos's rights under state law to enforce the contractual obligations as well, of which Papantoniou and Ramos are undisputed third party beneficiaries. Cox v. NAP Constr. Co., Inc., 10 N.Y.3d at 602, 606. See Wysocki v. Kel-Tech Constr. Inc., 46 A.D.3d 251 (1st Dep't 2007). Nor does the federal law bar plaintiffs' claims under Labor Law §§ 191 and 220, that defendants failed to pay prevailing wages, supplemental benefits, and overtime compensation timely for work performed under public works contracts to which a governmental authority or agency was a party. De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 21 N.Y.3d 530, 533 (2013).
Given that the amended complaint's claims are the same as the original complaint's claims, defendants will not suffer any prejudice. Brown v. Blennerhasset Corp., 113 A.D.3d 454, 455 (1st Dep't 2014); Fellner v. Morimoto, 52 A.D.3d at 353. Fidelity and Deposit Company articulates no further reason to deny joinder and amendment other than plaintiffs' delay, which alone is an insufficient reason to deny the relief. McGhee v. Odell, 96 A.D.3d 449, 450 (1st Dep't 2012); Kocourek v. Booz Allen Hamilton, Inc., 85 A.D.3d at 504-505; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365 (1st Dep't 2007). Fidelity and Deposit Company nowhere indicates it has been hindered in the preparation or presentation of a defense so as to overcome the heavy presumption in favor of permitting joinder of Ramos as an additional named plaintiff and related amendment to the complaint. Harlem Real Estate LLC v. New York Cotu Economic Dev. Corp., 111 A.D.3d 549, 549 (1st Dep't 2013); McGhee v.Odell, 96 A.D.3d at 450; Kocourek v. Booz Allen Hamilton, Inc., 85 A.D.3d at 504; Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d at 365.
III. FIDELITY AND DEPOSIT COMPANY'S CROSS-MOTION...
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