In this action, Stainslaw Nawrocki (Nawrocki), Zdzislaw Niemiec (Niemiec) and Ryszard Sadowski (Sadowski) (collectively, Plaintiffs) allege that they were the former employees of Proto Construction & Development Corp. (Proto), Liberty Architectural Products Co., Inc. (Liberty) and Barn Contracting, Inc. (Barn) (collectively, Defendants). In their complaint, Plaintiffs allege that the Defendants failed to pay them, as well as other construction workers who were employed by the Defendants, wages at the prevailing rate, supplemental benefits and overtime pay. Pursuant to a stipulation filed on June 30, 2008, the parties agreed that Plaintiffs' prior motion (motion sequence number 001) seeking certification of this action as a class action was withdrawn without prejudice, and that this action and all claims against Dimitrios Spanos (D. Spanos), Ralph Ciaio (Ciaio), Mannny Karatzias (Karatzias) and Mary Spanos (M. Spanos)(collectively, Individual Defendants) were discontinued without prejudice.

By notice of motion dated April 27, 2009 (motion sequence number 002), Plaintiffs seek an order, pursuant to CPLR 901 and 902, certifying the instant action as a class action. Defendants [*2]oppose the motion on various grounds. For the reasons set forth herein, the relief sought in Plaintiffs' motion is granted, with modifications, as explained fully below.

In the motion seeking certification of this action as a class action pursuant to CPLR 901 and 902, Plaintiffs propose that the putative class shall consist of "[a]ll individuals employed by Proto, Liberty, Barn or any related Contractor entities between the years 2001 and 2007 who performed work upon the Construction Projects. The defined class shall not include any employees engaged as clerical, administrative, professional, or supervisory workers who did not perform manual labor." Ambinder Affirmation, 4/09, ¶ 1. Notably, the term "Construction Projects" is defined to encompass both "Government Projects" (previously defined in the complaint as "Public Works Projects") and "Private Projects" (projects that are "privately financed"). Id., ¶ 2. Plaintiffs allege that, starting in 2001, they and other members of the putative class worked for Defendants at the sites of the Construction Projects, but were paid "less than the prevailing rates of wages and supplemental benefits and overtime compensation that they were owed." Id., ¶ 6. Plaintiffs assert that "a class action is the most efficient, most effective and least costly method of resolving this dispute." Id., ¶ 8.

CPLR 901 (a) sets forth the following requirements for class certification: (1) the class is so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class predominate over questions affecting only individual members; (3) the claims or defenses of the class representatives are typical of the claims or defenses of the class; (4) the class representatives will fairly and adequately protect the interests of the class; and (5) a class action is superior to other methods for the fair and efficient adjudication of the controversy.

The above requirements are liberally construed, and the decision to certify a class rests upon the sound discretion of the court. Small v Lorillard Tobacco Co., 94 NY2d 43, 52 (1999); [*3]Beller v William Penn Life Ins. Co. of New York, 37 AD3d 747, 748 (2d Dept 2007); Englade v Harpercollins Publishers, Inc., 289 AD2d 159, 160 (1st Dept 2001). The class representatives bear the burden of proving the requirements for certification, which is met by providing an evidentiary basis therefor. Kudinov v Kel-Tech Construction Inc., 65 AD3d 481, 481 (1st Dept 2009). General and conclusory allegations in the pleadings or affidavits are insufficient to meet such burden. Rallis v City of New York, 3 AD3d 525, 526 (2d Dept 2004).

Numerosity In the instant case, Defendants argue that the numerosity test has not been met with respect to Proto and Barn because (1) Proto only had a maximum of 41 employees, and Sadowski (a Proto employee) was only able to name 27 workers in his affidavit, but was unable to name in his deposition any workers with underpaid wage claims; (2) Barn had a maximum of 79 employees, and Niemiec (whose name appears in Barn's employee list) was unable to name any workers with underpaid wage claims; and (3) only individuals/workers who had been aggrieved by a defendant/employer's conduct can be a member of the class.^[FN1]

There is no mechanical or precise test to determine whether the numerosity test has been met. Friar v Vanguard Holding Corp., 78 AD2d 83, 96 (2d Dept 1980). However, "'the threshold for impracticability of joinder seems to be around forty.'" Jara v Strong Steel Door, Inc., 20 Misc 3d 1135(A), 2008 NY Slip Op 51733 (U), * 14 (Sup Ct, Kings County 2008), quoting Dornberger v Metropolitan Life Ins. Co., 182 FRD 72, 77 (SD NY 1998). The courts are to consider the unique circumstances of each case, and the inferences to be drawn therefrom, in deciding whether a sufficient number of individuals meet the definition of the class. Friar, 78 AD2d at 96. Here, Plaintiffs contend that the numerosity test is met because (1) the employee lists produced by Defendants in discovery reflected the names of no less than 232 workers; (2) the deposition testimonies of Niemiec and Sadowski indicated that they each recalled having worked with no less than 100 workers on the Public Works Projects; and (3) Ciaio, a principal of Liberty, testified that Liberty had over 100 employees. Although the employee lists contain no less than 232 names in the aggregate, Plaintiffs acknowledge that some of the employees worked for two or more Defendants (whose names thus appeared on multiple lists),^[FN2] which would reduce the aggregate of workers to a lower number. Whatever is the exact number, in light of the documentary and testimonial evidence, which is unrebutted by Defendants, there is an adequate showing that a joinder of all employees of Defendants is impracticable within the meaning of CPLR 901 (a)(1).^[FN3] Pesantez v Boyle Environmental Services, Inc., 251 AD2d 11, 12 (1st Dept 1998)(numerosity was established where the defendant's certified payroll records listed more than 100 employees and the named plaintiffs identified about 80 workers). [*4]

Defendants' reliance on Alix v Wal-Mart Stores, Inc. (16 Misc 3d 844 [Sup Ct, Albany County 2007], affd 57 AD3d 1044 [3d Dept 2008]), for the proposition that only those workers who were actually aggrieved by an employer's improper pay practices would qualify as class members, is flawed because Defendants have not alleged, nor have they provided any evidence, that there are employees within the putative class who were not aggrieved by their pay practices.

In Alix, the proposed class included about 200,000 workers who were employed over a 12-year period in 110 stores owned and operated by the employer. While that number facially met the numerosity requirement, the court found, inter alia, that the case record contained deposition testimonies and affidavits of 49 employees who denied that they were underpaid, as otherwise alleged by the named plaintiffs. In denying the motion seeking class certification, the court also found that the plaintiffs failed to satisfy all of the other prerequisites of CPLR 901 (a).

Hence, Alix is inapplicable and distinguishable. In any event, the Appellate Division, First Department, in Kudinov (65 AD3d at 481) has also noted that:

While it is true that the exact number of the putative class has not been determined, and that some members of the putative class have submitted affidavits affirmatively stating that they were not aggrieved by the allegations against defendants, the number of workers alleged to have been underpaid was high enough to justify the court's exercise of its discretion in certifying the class.

The appellate court also noted that "[w]hile it is appropriate in determining whether an action should proceed as a class action to consider whether a claim has merit, this inquiry is limited' [citation omitted]." Id. at 482. Therefore, this court is not required, at this time, to conduct an extensive analysis of the merits of Plaintiffs' claim. Indeed, based on the current record of this case, Plaintiffs have sufficiently alleged that they, and the putative class of employees, have a viable claim against the Defendants for engaging in purportedly improper pay practices in connection with the Public Works Projects.

Defendants also contend that the employees of Proto, Liberty and Barn should not be aggregated or collectively joined, because the complaint has not alleged sufficient facts of joint liability among the companies. In support of such contention, Defendants submitted the affidavits of Karatzia (the president of Barn) and M. Spanos (the president of Proto and the wife of D. Spanos, a principal of Liberty). Pearl Affirmation, Exhibits E and F. These affidavits purport to show, inter alia, that Barn and Proto are independently owned and operated. In reply, Plaintiffs presented, inter alia: (1) Karatzia's testimony indicating that he was paid and employed by all three Defendants and that he frequently worked at the Woodside offices of Proto and Liberty; (2) Defendants' payroll lists indicating that they shared certain employees; (3) Plaintiffs' testimonies stating that they had the same foreman or supervisor regardless of which Defendant employed them, and that they sometimes received paychecks from one or more Defendants even though they considered themselves to be employed by just one of the Defendants; (4) Defendants using the same payroll service to generate payroll and paychecks; and (5) the repeated refusal of D. Spanos and Ciaio, principals of Liberty, in answering questions during deposition by "taking the Fifth." The foregoing reflects that Plaintiffs have a colorable claim that the Defendants might be related or jointly operated. At this stage, however, it is unnecessary to fully consider the merits of Plaintiffs' claim that Defendants are jointly and severally liable for the wage claims, [*5]because such "inquiry is limited," as explained above. Yet, there is a sufficient showing that the employees of Proto, Liberty and Barn may be aggregated or collectively joined for the purpose of the numerosity test. Accordingly, the numerosity test under CPLR 901 (a) (1) is met.

Predominance and Typicality CPRL 901 (a) (2) requires that common questions of law or fact predominate over questions affecting individual class members, and CPLR 901 (a) (3) requires that the named plaintiffs' claims or defenses be typical of the proposed class members. It has been observed that "the decision as to whether there are common predominating questions of fact or law so as to support a class action should not be determined by any mechanical test, but rather whether the use of a class action would achieve economies of time, effort, and expenses, and promote uniformity of decision as to persons similarly situated." Friar, 78 AD2d at 97 (internal quotation marks and citations omitted). With respect to "typicality," the test is whether the plaintiffs' claim "derives from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory." Id. at 99.

In connection with the Public Works Projects, Plaintiffs have adequately alleged and established that there are common questions of law or fact as to whether Defendants paid such workers prevailing wages, supplemental benefits and overtime, as required by, and pursuant to, the various contracts entered into by Defendants with governmental agencies. Similarly, Plaintiffs have sufficiently pled and shown that their claims (or defenses) are typical of the proposed class members with respect to the Public Works Projects. Moreover, Defendants have not alleged, nor otherwise argued, that Plaintiffs' certification motion does not satisfy the predominance and typicality tests. Thus, these factors under CPLR 901 for class certification are not at issue.

Adequate Representation CPLR 901 (a) (4) requires the named representatives to fairly and adequately represent the interests of the class. Defendants argue that Plaintiffs cannot satisfy this test because (1) all Plaintiffs (as proposed class representatives) are bricklayers by trade, but there are other construction trade workers (such as electricians and plumbers) who were hired by Defendants with claims and interests different from those of Plaintiffs; and (2) none of the Plaintiffs worked past June 2004, but the proposed class would encompass workers hired by Defendants through 2007, which would render Plaintiffs unable to assist counsel in analyzing Defendants' pay practices for a three-year span (i.e., from 2005 to 2007) due to their lack of knowledge of the events that transpired in those years.

The above arguments are unpersuasive, at least with respect to the Public Works Projects employees. In Kudinov (supra) the appellate court ruled that "[t]he fact that different trades are paid on a different wage scale and thus have different levels of damages does not defeat certification." 65 AD3d at 482, citing Englade, 289 AD2d at 160. Also, the fact that certain of the Plaintiffs only worked until 2004 does not preclude them from serving as the proposed class representatives of those employees who were employed by Defendants in 2007. Iglesias-Mendoza v La Belle Farm, Inc., 239 FRD 363, 372 (SD NY 2007)(court granted renewed motion for class certification where proposed class consisted of past and present employees of defendant, and the circumstances regarding the former employee's termination was irrelevant as to whether he could serve as a class representative for the wage claims). Moreover, Plaintiffs have stated that there is no conflict of interest between them and the proposed class members, and that they are familiar with the issues in this action. Furthermore, it is undisputed by Defendants that the [*6]proposed class counsel is competent in representing employees in various class actions, such as this action. Thus, the adequacy of representation test is satisfied, at least with respect to the Public Works Projects employees.

However, Defendants have made a compelling argument as to why the proposed class members should not include those employees who worked on the Private Projects. Indeed, despite Plaintiffs' argument to the contrary, their complaint failed to identify or even mention any Private Projects.^[FN4] CPLR 3013 requires that the statements made in a pleading be "sufficiently particular to give the court and the parties notice of the transactions ... intended to be proved and the material elements of each cause of action or defense." The complaint failed to allege that Defendants had engaged in improper pay practices as to any Private Project. More importantly, Plaintiffs have acknowledged that the Private Projects employees, unlike their counterparts who worked on the Public Works Projects, are not entitled to prevailing wages and supplemental benefits, which appear to constitute the bulk of the claims asserted in the instant action. Plaintiffs' Reply Brief, at 9. Therefore, inclusion of the Private Projects employees in the proposed class (ostensibly to consist of all employees) would, at a minimum, vitiate the typicality test discussed above.Superiority CPLR 901 (a) (5) requires a plaintiff to show that a class action is superior to other vehicles for the fair and efficient adjudication of the dispute. It has been observed, by at least one court, that "the relatively insignificant amount of damages suffered by many members of the class makes individual actions cost prohibitive, and the large number of class members renders consolidation unworkable, a class action is not only superior but, indeed, the only practical method of adjudication." Pruitt v Rockfeller Center Properties, Inc., 167 AD2d 14, 24 (1st Dept 1991). In the instant case, the damages allegedly suffered by an individual employee are likely to be insignificant, and the cost for such employee to prosecute an action to redress the claim is costly, which makes a class action a superior vehicle for resolving the wage dispute. This point is undisputed by the Defendants. Thus, the superiority test is satisfied.

In addition to the prerequisites of CPLR 901, other factors

that a court may consider under CPLR 902 in deciding whether to certify a class action are: (1) the interest of the class members in individually controlling the prosecution of separate actions; (2) the impracticality of prosecuting separate actions; (3) the extent of any litigation already commenced by members of the class; (4) the desirability of concentrating the litigation in a particular forum; and (5) the difficulties likely encountered in the management of a class action. "Most of these considerations [in CPLR 902] are implicit in CPLR 901." Gilman v Merrill Lynch, Pierce, Fenner & Smith, Inc., 93 Misc 2d 941, 948 (Sup Ct, NY County 1978). Plaintiffs' proposed class counsel has indicated that, to his knowledge, "no other individual has instituted an action against these defendants for underpayment of wages and supplemental benefits in connection with the Construction Projects." Plaintiffs' Brief, at 21. Defendants have not disputed this point, nor have they raised any issues related to CPLR 902. Therefore, none of the CPLR 902 factors are at issue. [*7]

Accordingly, based on the foregoing, it is hereby

ORDERED that Plaintiffs' motion seeking certification of the instant action as a class action, pursuant to CPLR 901 and 902, is granted as to, and only to the extent of, all individuals employed by the Defendants between the years 2001 and 2007 who performed work upon the Public Works Projects (as such term is defined in the complaint), and the defined class shall not include any of the Defendants' employees who were engaged as clerical, administrative, professional, or supervisory workers who did not perform manual labor.

This Constitutes the Decision and Order of the Court.

Dated: April 7, 2010

ENTER:

___________________

J.S.C.