Thomas v. JRCruz Corp.
| Decision Date | 12 April 2023 |
| Docket Number | Index No. 511297/2020,Motion Sequence Nos. 5,6 |
| Parties | Latisha Thomas and Aieshai London, Individually and on Behalf of all Others Similarly Situated, Plaintiffs, v. JRCruz Corp., Defendant. JRCruz Corp., Third-Party Plaintiff, v. The City Of New York. Third-Party Defendant. |
| Court | New York Supreme Court |
DECISION / ORDER
The following e-filed papers read herein: NYSCEF Doc Nos.
Notice of Motion and Affidavits (Affirmations) Annexed 91-116 122-125
Opposing Affidavits (Affirmations) 126-156; 158-160
Upon the foregoing papers, plaintiffs Latisha Thomas and Aieshai London move (MS #5) for an order, pursuant to CPLR 901: 1) certifying their breach of contract, unjust enrichment and lack of required wage notice claims as class action claims on behalf of the proposed class of "all persons employed by defendant [JRCruz Corp.] any time since June 30, 2014 through the entry of judgment in this case who worked as non-union flaggers on public works projects in New York City[;]" 2) appointing counsel for plaintiffs as class counsel; 3) authorizing plaintiffs to use the proposed notice as the requisite class action notice; and 4) directing defendant to provide the names, telephone numbers, last known addresses and email addresses of all proposed class members as well as "Social Security Numbers for all Class Members whose Notice is returned as undeliverable without a forwarding address[.]" Defendant moves (MS #6) for an order, pursuant to CPLR 901: 1) granting defendant an order dismissing plaintiffs' complaint; or, in the alternative; 2) dismissing only plaintiffs' third cause of action, their class-based Labor Law §198 (1-b) claim. The third-party action was commenced on June 10, 2022, after plaintiffs' motion was filed. The third-party defendant has not submitted any papers with regard to either motion.
Plaintiffs commenced the instant action by electronically filing a summons and verified complaint in this court on June 30, 2020. As relevant to the instant motion, the named plaintiffs allege that they are "former construction flaggers" who, from December of 2018 to March of 2021, worked for defendant on several public works projects on the roadways of New York City. "Flagger" activities involved, while on or near public works construction sites, "holding stop/go signs, directing pedestrian and vehicular traffic to stop or walk/drive around construction sites, directing construction vehicles in and out of the construction zones, positioning bands and cones in and around the construction site, positioning caution tape in and around the construction site, sweeping the construction site, and walking behind the construction vehicles as they move from one place at the construction site to another."
The subject construction projects were pursuant to contracts entered into between defendant and New York City municipal departments, including but not limited to the New York City Department of Transportation and the New York City Department of Design and Construction. The main allegation is that construction contractors, such as defendant herein, that perform work pursuant to public works contracts, are required by the New York State Labor Law to pay certain employees a minimum local prevailing wage rate, including any applicable supplemental benefits and overtime for hours worked beyond 40 hours per week, eight hours per day, for hours worked on Saturdays and Sundays and hours worked during the evening. These "prevailing wage schedules" are generally either annexed to the applicable public works contract or are expressly or impliedly incorporated into them.
Plaintiffs claim that their work qualified them to receive "prevailing wages" under the Labor Law; however, defendant here failed to pay them accordingly. Moreover, plaintiffs contend that the Labor Law required defendant, upon employing them, to provide them with formal wage notices that contained specified information, such as the name of the employer, the regular pay rate, overtime pay rate and the regular pay day. Plaintiffs further claim that defendant failed to provide these required wage notices. Moreover, plaintiffs allege that these practices-the failure to pay prevailing wages for public roadway work, and the failure to provide wage notices-constituted defendant's pattern with respect to all employees. Plaintiffs asseit breach of contract claims (and alternatively, unjust enrichment claims) for the unpaid prevailing wages, as well as claims for statutory damages which arise because of defendant's failure to provide the requisite wage notices. Additionally, given defendant's practices with respect to its employees, plaintiffs contend that these claims should be certified as class action claims on behalf of the applicable current and former employees of defendant from June 30, 2014, six years prior to the date of commencement.
On October 20, 2020, defendant electronically filed an answer to the complaint which denied the allegations therein. As relevant to the instant motions, defendant asserted, among other things, general denials that plaintiffs performed work that qualified them for prevailing wages, and averring that the stated claims are not proper for the class action mechanism. Discovery then commenced.
Pursuant to CPLR 901, a timely motion for class certification must be made within 60 days after the last answer is due. On January 27, 2021, plaintiffs moved for an extension of time to move for certification of the proposed class, arguing, in essence, that at least some discovery was necessary before a motion for class certification could reasonably be made. Defendant opposed the motion, arguing, among other things, that plaintiffs needed no discovery to timely move for class certification. By order dated May 14, 2021, another justice of this court, noting that it has "discretion to extend the deadline upon good cause shown, such as plaintiffs need to conduct class certification disco very," found that such good cause existed, and extended the deadline to "within 60 days after defendant's deposition is held."
More discovery and motion practice ensued; however, defendant's deposition was not held and a motion for class certification was not made. Concurrently, the parties were involved in settlement negotiations, and defendant, apparently frustrated with plaintiffs' negotiating tactics, moved for an order essentially compelling plaintiffs to accept a settlement offer and imposing sanctions against plaintiffs for bad-faith negotiations. Plaintiffs opposed the motion, arguing, among other things, that their settlement negotiations were consistent with defendant's potential exposure, given other "flagger" prevailing-wage class action cases. By order dated May 27, 2022, this court denied the defendant's motion, but imposed a firm deadline for plaintiffs to move for class certification, specifically directing plaintiffs to e-file their motion for class certification within 60 days, that is, on or before July 26, 2022.
On July 26, 2022, plaintiffs made the instant motion for an order, among other things, certifying the proposed class. Defendant responded with the instant motion to dismiss. These are the motions presently before the court.
In support of their motion for an order certifying the proposed class, plaintiffs first assert that they were, at all relevant times, employed by defendant as non-union constructionsite "flaggers" performing traffic and pedestrian safety duties; specifically, their work involved directing pedestrians, street vehicles and construction vehicles toward and away from construction site areas. Also they claim that they performed other construction site duties, including placing barriers, cleaning, sweeping and carrying tools. At all relevant times, they continue, the named plaintiffs and putative class members performed their work with the primary purpose of ensuring the safety of the public and the construction crews at and within close proximity of construction sites.
Plaintiffs next state the factors, set forth in Article 9 of the CPLR, that should be considered on a motion for class certification. Specifically, plaintiffs note that parties seeking class certification must demonstrate numerosity of class members, commonality of questions of fact and or law, typicality of the named plaintiffs' claims, adequacy of the class representatives, and superiority over other available methods of adjudicating the controversies. Moreover, plaintiffs aver that courts should consider the interests of members of the class in individually controlling the prosecution or defense of separate actions, the impracticability or inefficiency or prosecuting or defending separate actions, the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, the desirability or undesirability of concentrating the litigation of the claim in the particular forum, and the difficulties likely to be encountered in the management of a class action. Lastly, plaintiffs note that the case law states that the decision whether to grant a motion for class certification rests within the sound discretion of the court.
Next plaintiffs argue that although it is their burden to demonstrate that the class-certification requirements of CPLR §901 (a) are satisfied, the requirements should be liberally construed when the court considers granting class action certification. Indeed, plaintiffs claim that any doubts must be resolved in favor of class certification. Moreover, they argue...
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