By this motion Plaintiffs seek an order pursuant to CPLR §§901 and 902 determining that this action may proceed as a class action on behalf of two subclasses defined as:

Sub-Class I Identified Centennial Insurance Company Projects:

Plaintiffs and class of all individuals including past or present employees of Cema Construction Corp. who performed construction work as carpenters, ironworkers, painters, roofers, bricklayers, pointers, masons and in other trades incidental thereto on the following Public Works Projects bonded by Centennial Insurance Company: Public School 88(X): SCA Solicitation No. 00-05584D-1; Public School 84 (K): SCA Solicitation No. 00-056180D-1; Fire House No. 210: Project No. FDNY EC-210-1; Engine Company 93: Project No. FDNY EC-93-1; Park Slope Armory: DDC Project No. 114165.07; Bedford/Atlantic Armory: DDC Project No. 114165.07.

Sub-Class II Remaining Projects:

Plaintiffs and a class of all individuals including past or present employees of Cema Construction Corp. who performed construction work as carpenters, ironworkers, painters, roofers, bricklayers, pointers, masons and in other trades incendental thereto on the following Public Works Projects performed by Cema Construction including but not limited to: Intermediate School 5 (Queens); Intermediate School 61 (Queens); Public School 32 (Queens); Public School 31 (Queens); Public School 80 (Staten Island); Engine Company 6 (Manhattan); Subway Station at 191st Street and St. Nicholas Avenue (Manhattan); Public School 397 (k); Intermediate School 34(4); Public School 161 (Q); Public School 346(K).

The underlying claim arises from the alleged failure of Cema Construction Corp. ("Cema") to pay the named Plaintiffs and other members of the putative class, prevailing rate of wages and supplemental benefits for work performed on certain Public Works Projects.

Plaintiffs claim that between 2000 and 2005, Cema entered into Public Works Contracts to perform general construction work at numerous sites throughout New York as a prime contractor of record or a subcontractor.

Pursuant to these contracts, Cema was responsible for paying and ensuring the payment of prevailing wages and supplemental benefits to the named Plaintiffs and members of the putative class.^[FN1] The prevailing rate of wages and supplemental benefits [*2]that each member of the putative class was entitled to receive for their services ranged between $40.00 and $55.00 per hour depending upon the trade and classification of each worker and when each worker performed the work. These rates were set forth in schedules promulgated by the New York State Department of Labor and incorporated into the Public Works Contracts. These prevailing wage schedules reflected the trade classification and correlative rates of wages and supplemental benefits for the various trades.

Plaintiffs claim that beginning in 2000, the named Plaintiffs and other members of the putative class furnished labor on behalf of Cema at the site of the Public Works Projects. The named Plaintiffs and all members of the putative class claim that they were paid less than the prevailing rates of wages and supplemental benefits they were owed. Thereafter the named Plaintiffs instituted this class action on behalf of themselves and all other workers on the Public Works Projects who were similarly underpaid for their services in order to recover monies to which they may be entitled. As listed above, Plaintiffs seek certification of two subclasses previously identified.

This action is brought against Centennial as the surety who issued labor and material payment bonds guaranteeing the obligations of Cema under the identified Public Works Contracts. Under the terms of the Bonds, the sureties expressly guaranteed, subject to certain rights and defenses, that if Cema failed to pay workers the prevailing rates of wages and supplemental benefits, sureties who underwrote the Bonds for the particular project would make payment to all workers who were underpaid.

The right of an employee, on a public works project, to maintain an action against an employer for breach of contract to recover the difference between the wages actually paid and the prevailing rate of wages which should have been paid is well established. (Fata v. S.A. Healy Co., 289 NY 401 [1943]). Moreover, the Appellate Division has approved certification of a class of workers based on a common law breach of contract claim for underpayment of prevailing wages and supplemental benefits against their employer and the bonding companies that issued payment bonds on various Public Works Projects. (Pesantez v. Boyle Environmental Services, Inc., 251 AD2d 11 [1st Dept 1998]; Brady v. Canea Mare Contracting, Inc., 34 AD3d 512 [2d Dept 2006]). In Pesantez, the court acknowledged that the class action mechanism was the best way of adjudicating a controversy such as the one at bar where Plaintiffs are seeking payment of unpaid prevailing wages and supplemental benefits. (Id.)

CPLR §901 provides that one or more members of a class may sue as representative parties on behalf of a class if: [*3]

1. The class is so numerous that joinder of all members wether otherwise required or permitted is impracticable [numerosity];

2. There are questions of law or fact common to the class which predominate over any questions affecting only individual members [predominance];

3. The claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality];

4. The representative parties will fairly and adequately protect the interests of the class; and

5. A class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Contrary to Centennial's arguments, all of the CPLR §901 elements have been satisfied.

Section 901(a)(1) requires that the class be so numerous that joinder of all class members is impracticable. There is no mechanical test or set quantity of prospective class members which must exist to determine whether the class membership is so numerous as to made actual joinder impracticable. (Pesantez v. Boyle Environmental Services, Inc., 251 AD2d 11 [1st Dept 1998]). Each case depends upon the particular circumstances surrounding the proposed class and the court should consider the reasonable inferences and common sense assumptions from the facts before it. (Friar v. Vanguard Holding, 78 Ad2d 83 [2d Dept 1980]).

Here, the numerosity requirement has been satisfied with forty class members. The class, as defined, is narrowly defined to avoid being over inclusive, but large enough that joinder is not practicable. Under these circumstances, joinder is both impracticable and undesirable.

The second requirement under CPLR §901(a)(2) is that common questions of law or fact predominate over any questions affecting individual members. Here, there are questions of law and fact common to the class to predominate over questions affecting only individual class members, namely, that Cema failed to ensure payment of the prevailing rates of wages and supplemental benefits pursuant to the Public Works Contracts.

The "factual identity between the Plaintiff's claim and those of the class he seeks to represent is not necessary" if these claims arise, at least in part, from a common wrong or set [*4]of wrongs regardless of individual factors. (Senter v. General Motors Corp., 532 F.2d 511, 524 [6th Cir] cert denied 429 US 870 [1976]).

Here, the named Plaintiffs' claims and those of the members of the putative class arise from a common wrong, Cema's failure to ensure payment of the prevailing rates of wages and supplemental benefits pursuant to the Public Works Contracts. Common questions of fact include and are not limited to whether schedules of the applicable prevailing rates of wages and benefits were attached to the Public Works Contracts, whether Cema posted notices at the job sites of the respective Public Works Projects setting forth the prevailing rates of wages and benefits and whether Centennial issued labor and material payment bonds to Cema. Some common questions of law include whether the Work Contracts were for public work requiring payment of prevailing wages and benefits, whether the work performed was public work as defined by New York law and if so, what the prevailing rates and benefits were.

It follows that the predominance requirement of CPLR 901(a)(2) has been satisfied.

CPLR §901(a)(3) requires that the named Plaintiffs' claims be typical of the proposed class. The typicality requirement is satisfied when the named Plaintiffs' claims derive from the same practice or conduct that gave rise to the remaining claims of the class members and is based upon the same legal theory. (Friar v. Vanguard Holding, 78 Ad2d 83 [2d Dept 1980]).

In this case, the Plaintiffs' claims are typical of the claims of the members of the putative class. The named Plaintiffs and the putative class members were employed by Cema to provide labor at the sites of the Public Works Projects. Each of the named Plaintiffs and the members of the putative class were underpaid and received less than the prevailing rates of wages and supplemental benefits that they claim they were entitled to receive. It follows that each named Plaintiff and each member of the putative class, if injured, was injured in the same manner.

Furthermore, claims brought by the Plaintiffs against Centennial and the prime contractors are typical of the claims brought by the putative class members, as the claims are derived from work that all of the putative class members performed at the Public Works Projects and would thus be subject to the limitations contained in the respective Bonds.

Since the claims of the Plaintiffs and members of the putative class arise from the same conduct, Plaintiffs claim to have suffered from the same wrong committed by Cema, and Plaintiffs claims are based on the same legal theory, the [*5]typicality requirement has been satisfied.

CPLR 901(a)(4) required that the named Plaintiffs be in a position to adequately protect the interest of the members of the class in the litigation. Adequacy of representation requires that counsel for the named Plaintiffs be competent and that the interests of the named Plaintiffs and the members of the class not be adverse. (Pruitt v. Rockefeller Center Properties Inc., 167 AD2d 14, 24 [1st Dept 1991]).

Here, the class representatives have a financial interest in the outcome of the litigation and understand and have accepted their obligations to represent the workers. There are no conflicts between the class members and the class representatives and counsel for the class representatives is competent to adequately represent the interest of the class.

Lastly, CPLR 901(a)(5) requires that the class action method be superior to other methods. Here, Plaintiffs allege that the action if the Prime contractor and the other Defendants caused no less than 70-100 workers to suffer an aggregate in excess of $500,000 in damages. As stated above, in Pesantez v. Boyle Environmental Services, Inc., 251 AD2d 11 [1st Dept 1998], the court recognized that in a controversy such as this, a class action is the best method of adjudication.

In this case, the class action device is superior to any other method for the fair and efficient adjudication of the issues before this Court. Defendants will have an opportunity to present all of its defenses to the class. Certification of this class will efficiently and economically address the issues discussed above. Accordingly, Plaintiffs' motion for class certification is granted.

Accordingly it is

ORDERED that Plaintiffs' motion is granted in its entirety.

Counsel for the parties are to appear at 60 Centre Street in room 335 at 11:00am for a preliminary conference on March 21, 2008.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

Hon. Walter B. Tolub, J.S.C.