Pesantez v. Boyle Environmental Services, Inc.

• Decision Date: 02 June 1998
• Citation: 1998 WL 289416,673 N.Y.S.2d 659,251 A.D.2d 11
• Parties: , 1998 N.Y. Slip Op. 5141 Luis PESANTEZ, et al., Plaintiffs-Respondents, v. BOYLE ENVIRONMENTAL SERVICES, INC., et al., Defendants-Appellants, and J. Greaney Construction Corp., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 659

673 N.Y.S.2d 659

251 A.D.2d 11, 1998 N.Y. Slip Op. 5141

Luis PESANTEZ, et al., Plaintiffs-Respondents, v. BOYLE ENVIRONMENTAL SERVICES, INC., et al., Defendants-Appellants, and J. Greaney Construction Corp., Defendant.

Supreme Court, Appellate Division,

First Department.

June 2, 1998.

Alan M. Pollack, for plaintiffs-respondents.

David J. Sutton, David Westermann, Jr., Robert Beau Leonard, for defendants-appellants.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about August 31, 1995, which granted plaintiffs' motion to certify a class in an action to recover the prevailing rate of wages, unanimously modified, on the law and the facts, to redefine the class as "all past and present employees of Azevedo & Boyle Contracting, Inc. and Boyle Environmental Services Inc., its alleged successor-in-interest (collectively, 'Boyle'), who performed asbestos removal work pursuant to a subcontract between Boyle and J. Greaney Construction Corp. ('Greaney') as part of the installation of an HVAC system pursuant to SCA Contract No. 92-00009C on a project at P.S. 178 in the Bronx"; to stay all claims as against defendant Reliance Insurance Company of New York ("Reliance"); to stay the Labor Law § 220 claims as against all defendants pending further order of the IAS Court; and otherwise affirmed, without costs.

Although Boyle filed a notice of appeal, it did not appear in opposition to plaintiffs' motion in the IAS court or make any cross motion, and thus its appeal must be dismissed since it does not qualify as an aggrieved party (see, Shao v. Fugazy Express, 177 A.D.2d 422, 423, 576 N.Y.S.2d 263).

All claims as against Greaney are automatically stayed by its filing for Chapter 11 bankruptcy protection (11 USC § 362), and as against Reliance, Greaney's surety, by the Bankruptcy Court's bar orders of April 18, 1994 and January 22, 1998.

Plaintiffs fail to establish the existence of any employees of a subcontractor of Boyle or of Greaney, much less one who was paid less than the "prevailing rate" of wages and benefits, and thus the IAS court erred in expanding the definition of the class to include such employees, and should have limited any class definition to Boyle's employees, who are the only persons identified by the complaint itself (see, Phillipe v. American Express Travel Related Servs. Co., 188 A.D.2d 268, 590 N.Y.S.2d 716; Katz v. NVF Co., 100 A.D.2d 470, 472, 473 N.Y.S.2d 786).

Such a group of persons meets the requirements for certification under CPLR 901 and 902. Boyle's certified payroll records list over a hundred employees who worked on the project in question, and the named plaintiffs identify about 80 workers; whatever the exact number, we are satisfied that joinder of all of Boyle's employees is impracticable within the meaning of CPLR 901(a)(1) (see, Robidoux v. Celani, 987 F.2d 931, 935 [2d Cir.] ). All proposed class members worked on the same project, were due the prevailing rate of wages and benefits and were allegedly underpaid; thus the named plaintiffs' claims are typical of those of the proposed class (CPLR 901[a][3] ), and the nature of the claims is such as to indicate a predominance of common issues of law and fact over individual questions of damages (CPLR 901[a][2]; see, Pruitt v. Rockefeller Center Props., 167 A.D.2d 14, 22, 574 N.Y.S.2d 672). To the extent certain individuals may wish to pursue punitive claims pursuant to Labor Law § 198(1-a), which cannot be maintained in a class action (CPLR 901[b] ), they may opt out of the class action (see, Weinberg v. Hertz Corp., 116 A.D.2d 1, 4, 499 N.Y.S.2d 693, affd. 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347; Super Glue Corp. v. Avis Rent A Car Sys., 132 A.D.2d 604, 606, 517 N.Y.S.2d 764). Plaintiffs have exhibited an interest in the action and their counsel have demonstrated a level of competence ensuring that they can fairly and adequately represent the class members (CPLR 901[a][...