In this class action, named plaintiffs Desmond Hoggard and Ashley Clark, acting on behalf of themselves and the certified class, seek compensation for work they performed on a publicly-funded housing project. Plaintiffs now move pursuant to CPLR 3212 for summary judgment as to liability to recover unpaid prevailing wages and supplemental benefits on their first cause of action for breach of contract against the general contractor for the project, defendant Cheever Development Corp. ("Cheever"); and on their third and fourth causes of action against defendant insurer Liberty Mutual Insurance Company d/b/a Liberty Mutual Surety ("Liberty"), arising under Liberty's suretyship obligations under a payment bond. Alternatively, plaintiffs move pursuant to CPLR 3212 (g) to limit issues of fact for trial.

Cheever and Liberty oppose plaintiffs' motion and cross-move (i) to dismiss plaintiffs' complaint pursuant to CPLR 1001 for failure to join necessary parties; (ii) for summary judgment dismissing plaintiffs' third and fourth causes of action against Liberty, for failure to satisfy conditions precedent to suit against Liberty's payment bond; and (iii) to disqualify plaintiffs' counsel due to their violation of Rules of Professional Conduct 1.18 and 4.3. Plaintiffs [*2]oppose the cross-motion.

Plaintiffs' claims arise out of work they performed at the Serviam Heights senior housing project at 2848 Bainbridge Avenue, Bronx, New York, between January 2017 and January 2018 ("Project")(Complaint ¶ 1).^[FN1] The Project consisted of new construction and rehabilitation of a convent for use as multi-family rental housing for low-income senior tenants, and related works (General Contract at BS 000007 [NYSCEF Doc. 102]; Besse Tr. at 37:24-40:13 [NYSCEF Doc. 103]).

The general contractor for the Project was defendant Cheever (General Contract at BS 000007; Besse Tr. at 25:23-26:2), which retained defendant Sheer Taping as a subcontractor to perform taping, plastering, and painting (id. at 26:3-11; Graves Tr. at 28:24-29: 9 [NYSCEF Doc. 104]; Sheer Subcontract [NYSCEF Doc. 107]). Plaintiffs worked for Sheer Taping or its owner, defendant Eric Graves, performing taping at the Project during a period roughly spanning January 2017 to January 2018 (Hoggard Tr. at 10:4-10, 16:3-8, 24:15-26:2 [NYSCEF Doc. 119]; Clark Tr. at 13:3-15:10, 31:5-32:15 [NYSCEF Doc. 121]; Hoggard Aff. ¶¶ 2-3 [NYSCEF Doc. 118]; Clark Aff. ¶¶ 2-3 [NYSCEF Doc. 120]; Hawkins Aff. ¶¶ 2-3 [NYSCEF Doc. 122]; Brown Aff. ¶¶ 2-3 [NYSCEF Doc. 123]).

Defendant Liberty issued a $56.4 million surety bond to Cheever, as contractor for the Project, to indemnify the owner of the property against claims for unpaid labor, materials or equipment provided in performance of the general contract (Surety Bond [NYSCEF Doc. 124]; Cheever Statement of Material Facts ¶ 5 [NYSCEF Doc. 134]). The surety bond defines as a permitted "claimant" any "individual or entity having a direct contract with the Contractor [Cheever] or with a subcontractor of the Contractor to furnish labor, materials or equipment" at the Project (Surety Bond § 16.2).

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

Plaintiffs allege in their first cause of action that Cheever breached the general contract by failing to ensure plaintiffs were paid prevailing wages and supplemental benefits for their [*3]work at the Project (Complaint ¶¶ 32-36).

Plaintiffs establish prima facie the first element of their contract claim (see Noto v Planck, LLC, 228 AD3d 516, 516 [1st Dept 2024] [breach of contract elements]; Markov v Katt, 176 AD3d 401, 401-02 [1st Dept 2019][same]). At issue is the general contract between Cheever and the non-party owners of the premises, Serviam Heights Housing Development Fund Corporation and Serviam Heights LLC (General Contract [NYSCEF Doc. 102]). The contract provides that Cheever shall comply with, and shall cause each subcontractor to comply with, the prevailing wage statutory scheme (id. at BS 000126-000127).^[FN2] Also, attached as a rider to the contract is a Prevailing Wage Schedule, setting forth the prevailing wage and supplemental benefits for workers at the Project, including drywall tapers (id. at BS 000133, BS 000146).

Plaintiffs have also established their standing to enforce their third-party rights to payment under the contract against Cheever (see Wroble v Shaw Envtl. & Infrastructure Eng'g of NY, P.C., 166 AD3d at 521 ["in public works contracts, a subcontractor's employees have . . . a third-party right to make a breach of contract claim for underpayment against the general contractor"]; see also Cox v NAP Const. Co., Inc., 10 NY3d 592, 601-604 [2008]; Stabile v Dragonetti Bros. Landscaping Nursery & Florist, Inc., 238 AD3d 577, 577 [1st Dept 2025]; Footman v D'Onofrio General Contractors Corp., 215 AD3d 487, 487-488 [1st Dept 2023]["An employment relationship is not required in order to pursue a third-party beneficiary claim for prevailing wages"]).

Concerning plaintiffs' performance, they proved they did taping work at the Project throughout 2017, which work qualified for the payment of prevailing wages and supplemental benefits (Hoggard Tr. at 10:4-10, 16:3-8, 24:15-26:2, 27:7-17, 48:5-49:20 [NYSCEF Doc. 119]; Clark Tr. at 13:2-15:10, 31:5-32:15, 37:23-39:16, 55:11-56:6 [NYSCEF Doc. 121]; see Hoggard Aff. ¶ 7; Clark Aff. ¶ 7; Hawkins Aff. ¶ 7; Brown Aff. ¶ 7]).

Plaintiffs further demonstrate that Cheever breached the contract, insofar as plaintiffs were not paid the prevailing wage for their work (Hoggard Tr. at 52:7-53:12; Hoggard Aff. ¶ 8; Clark Tr. at 62:4-25, 82:17-83:15; Clark Aff. ¶ 8; Hawkins Aff. ¶ 8; Brown Aff. ¶ 8; Graves Tr. at 76:16-77:11), and did not receive supplemental benefits or the monetary equivalent of the [*4]benefit rate (Hoggard Aff. ¶¶ 8, 10; Clark Aff. ¶¶ 8, 10; Hawkins Aff. ¶¶ 8-9; Brown Aff. ¶¶ 8-9; Graves Tr. 75:24-76:15, 77:12-15).

Liberty and Cheever fail to raise a triable issue of fact sufficient to overcome summary judgment as to liability against Cheever under the general contract. While they argue that plaintiffs were not present at the jobsite during certain inspections conducted by the U.S. Department of Housing and Urban Development ("HUD") (see HUD Inspection Records [NYSCEF Doc. 145]), there is no evidentiary basis for defendants' contention that all workers were reported when HUD visited the site. Further, Graves testified that Sheer Taping employees worked weekends and nights, when they would not sign in (and when HUD inspections were not conducted), and that the employees did not always sign in during the day (Graves Tr. at 53:6-55:18, 84:10-85:6). The question of how many hours plaintiffs worked goes to damages.

Liberty and Cheever further argue that plaintiffs failed to exhaust their administrative remedies after commencing and abandoning an administrative review with the U.S. Department of Labor (Brennan Aff. in Supp. of Cross-Motion ¶ 8 [NYSCEF Doc. 133]; Defs' Reply at 4 [NYSCEF Doc. 174]). However, the Court of Appeals has rejected this argument, holding that prevailing wage plaintiffs do not have an administrative remedy with the U.S. Department of Labor, in implementing the federal Davis-Bacon Act (Cox v NAP Const. Co., Inc., 10 NY3d at 606-607).

Therefore, plaintiffs' motion for partial summary judgment as to liability on their breach of contract claim against Cheever is granted, and Liberty and Cheever's motion for summary judgment dismissing that claim is denied.

Plaintiffs move for summary judgment as to liability against Liberty on their fourth cause of action, pursuant to Labor Law § 220-g, to recover unpaid prevailing wages and supplemental benefits under the surety bond (see Complaint ¶¶ 46-51).

Labor Law § 220-g expressly permits plaintiffs' claim against Liberty, as the issuer of the bond, providing that:

"the affected employee may bring an action to recover from the bond which is required by [State Finance Law § 137], of the contractor, the subcontractor or both, unpaid wages and supplements, including interest as provided for in subdivision eight of section two hundred twenty of this article, due to persons furnishing labor to either the contractor or subcontractor. Said action may be brought against the contractor, the subcontractor, or the issuer of such bond, without prior notice, within one year of the date of the last alleged underpayment, or within one year of the date of the filing of an order by the commissioner or other fiscal officer determining a wage or supplement underpayment" [emphasis added].

The Court finds that plaintiffs have met their prima facie burden by showing that Liberty is the surety for a payment bond required by State Finance Law § 137 (Cheever-Liberty Payment Bond [NYSCEF Doc. 124]); plaintiffs are "affected employees" who performed qualifying work, bonded by Liberty, and were not paid the prevailing wage and supplemental benefits pursuant to the contracts and Labor Law § 220-3; and defendants do not dispute that plaintiffs timely commenced this action.

Liberty has not demonstrated conditions that would otherwise relieve it of its payment obligation under the bond (see Blandford Land Clearing Corp. v Natl. Union Fire Ins. Co. of [*5]Pittsburgh, Pa., 260 AD2d 86, 91-92 [1st Dept 1999]). Further, Liberty's argument that plaintiffs were required to comply with the notice provisions of the payment bond as a condition precedent to suit is belied by the very terms of Labor Law § 220-g, which permits the commencement of actions against bonding companies "without prior notice" if brought within one year of the last alleged underpayment (NYLL 220-g; see Trustees of the Pavers & Rd. Bldrs. Dist. Council Welfare v Arch Ins. Co., 171 AD3d 661, 661 [1st Dept 2019]). Defendants do not challenge the timeliness of this action.

Therefore, the Court grants plaintiffs' motion for summary judgment as to liability on its fourth cause of action against Liberty under the surety bond, and denies Liberty's related cross-motion to dismiss that claim.

Plaintiffs allege in their third cause of action that Liberty, by issuing the surety bond to Cheever, assumed joint and several liability to pay plaintiffs prevailing wages and supplemental benefits not otherwise paid by the general contractor or subcontractor (Complaint ¶¶ 42-45).

Plaintiffs have met their prima facie burden on this claim. As discussed, plaintiffs established Cheever's liability under the general contract. Moreover, the bond on its face provides that Cheever, as the contractor, and Liberty, as the surety, "jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference" (Cheever-Liberty Payment Bond § 1 [NYSCEF Doc. 124]). Enforcing these unambiguous terms on their face (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]), plaintiff is entitled to judgment as a matter of law against Liberty under the bond (see generally Fid. and Deposit Co. of Maryland v Parsons & Whittemore Contractors Corp., 48 NY2d 127, 132 [1979][principal and surety agreed to joint and several liability]). For the reasons already discussed, defendants' condition precedent argument also fails as directed to plaintiffs' third cause of action.

Accordingly, plaintiff's motion for summary judgment as to liability on its suretyship claim against Liberty is granted, and Liberty's cross-motion to dismiss that claim is denied.

In support of their cross-motion, Liberty and Cheever argue that this action should be dismissed pursuant to CPLR 1001 for failure to join named defendants Sheer Taping and Graves as necessary parties. They contend that the rights of Sheer Taping and Graves will be adversely affected in their absence; and that their own rights could be prejudiced and an inconsistent future judgment could result, if defendants later pursue Sheer Taping and Graves following an adverse judgment here.

In opposition, plaintiffs contend that they properly served Graves, but he never answered or appeared (see Aff. of Service [NYSCEF Doc. 6]; Graves Tr. 12:20-14:11 [NYSCEF Doc. 104]), and they chose not to pursue a default judgment against him because he is judgment proof. However, plaintiffs sought repeatedly to take Graves' testimony before successfully moving to compel his compliance (4/14/22 Order [NYSCEF Doc. 72]; 3/9/23 Order [NYSCEF Doc. 96]), and defendants questioned Graves at his deposition. Concerning defendant Sheer Taping, plaintiffs argue that it is a non-existent entity and, thus, impossible to serve. Plaintiffs argue that Sheer Taping and Graves are not necessary parties and, even if they were, dismissal would not be warranted because any judgment against them would amount to a "Pyrrhic victory" (see Baby Phat Holding Co., LLC v Kellwood Co., 123 AD3d 405, 406 [1st Dept 2014]).

Under CPLR 1001(a), "an individual or entity is a necessary party to litigation 'if complete relief is to be accorded between the persons who are parties to the action' or if the entity 'might be inequitably affected by a judgment in the action'" (Swezey v Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 NY3d 543, 550 [2012]; see also Alayeto v Commissioners of Elections of the City of N.Y, 238 AD3d 479, 480 [1st Dept 2025]). "These compulsory joinder provisions are intended not merely to provide a procedural convenience but to implement a requisite of due process — the opportunity to be heard before one's rights or interests are adversely affected" (Mahinda v Board of Collective Bargaining, 91 AD3d 564, 565 [1st Dept 2012][citation omitted]). Dismissal for non-joinder of a necessary party is a last resort (JPMorgan Chase Bank, N.A. v Salvage, 171 AD3d 438, 439 [1st Dept 2019]; Swezey v Merrill Lynch, Pierce, Fenner & Smith, Inc., 87 AD3d 119, 132 [1st Dept 2011], affd 19 NY3d 543 [2012]; L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1, 11 [1st Dept 2007]).

Defendants have not met the criteria under CPLR 1001 for dismissal of this action. Given that plaintiffs have standing to pursue third-party claims against Cheever and Liberty, complete relief can be accorded here without joining plaintiffs' employer or its principal (Pena v Intergate Manhattan LLC, 234 AD3d 618, 618 [1st Dept 2025]; see also Kirby v David Fabricators of NY, Inc., 236 AD3d 436, 437 [1st Dept 2025][joint tortfeasors are not necessary parties to an action]). Neither will Sheer Taping and Graves be "inequitably affected" within the meaning of CPLR 1001 by proceeding without them (Samsung Electronics Co., Ltd. v MPEG LA, LLC, 235 AD3d 603, 604 [1st Dept 2025]). Graves, who was served with process and testified in this matter, has had an opportunity to be heard (Almah LLC v AIG Employee Services, Inc., 159 AD3d 532 [1st Dept 2018]; see also Samy F. v Fabrizio, 176 AD3d 44, 48 [1st Dept 2019]). At the very least, plaintiffs have established that any judgment they might obtain against Sheer Taping and Graves would be hollow, rendering dismissal under CPLR 1001 inappropriate (Baby Phat Holding Co., LLC v Kellwood Co., 123 AD3d at 406).

Finally, the Court notes that defendants Liberty and Cheever waited until summary judgment to raise their necessary party argument and did not, for instance, take steps to implead Sheer Taping and Graves.

Defendants' cross-motion to dismiss plaintiffs' complaint for failure to join necessary parties is, therefore, denied.

Upon consideration of the parties' arguments in their briefs and at oral argument, the Court finds that defendants fall far short of their "heavy burden" to disqualify plaintiffs' counsel in this action (Mayers v Stone Castle Partners, LLC, 126 AD3d 1, 5 [1st Dept 2015]; see Fisher v Hauman, 204 AD3d 406, 407 [1st Dept 2022]; Dietrich v Dietrich, 136 AD3d 461, 462 [1st Dept 2016]). There is no support for defendants' assertion that plaintiffs' counsel violated, or even appeared to have violated, the Rules of Professional Conduct or any other ethics norms. Defendant Graves, acting pro se, twice approached plaintiffs' counsel, who turned Graves away with the instruction to obtain his own counsel due to a conflict of interest (Graves Tr. at 164:16-169:8 [NYSCEF Doc. 104]; Rappaport Affirm. ¶¶ 25-32 [NYSCEF Doc. 161]). To the extent named plaintiff Ashley Clark testified that he learned of this class action from Graves, there is no proof that plaintiffs' counsel was involved in the interaction in any way (Clark Tr. at 27:21-30:18 [NYSCEF Doc. 121]; Rappaport Affirm. ¶¶ 33-35). Notably, defendants admitted during oral argument that they waited more than a year after Graves' November 11, 2022 deposition before [*6]seeking to disqualify plaintiffs' counsel (9/30/25 Oral Arg. Tr. at 33:15-34:21). This admission further weighs against disqualification (see Mayers v Stone Castle Partners, LLC, 126 AD3d at 6 [courts should "examine whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive the opponent of quality representation"]; see also Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 132 [1996][disqualification motions have been "used as a litigation tactic to gain strategic advantage over an adversary"]).

The Court has considered the parties' remaining arguments and any request for relief not expressly addressed is denied.

Accordingly, it is hereby

ORDERED that plaintiffs' motion for partial summary judgment as to liability on their first cause of action against defendant Cheever Development Corp., and on their third and fourth causes of action against defendant Liberty Mutual Insurance Company d/b/a Liberty Mutual Surety, is GRANTED; and it is further

ORDERED that the cross-motion by Cheever and Liberty to dismiss plaintiffs' complaint for failure to join necessary parties, for summary judgment dismissing plaintiffs' claims against Liberty, and to disqualify plaintiffs' counsel, is DENIED; and it is further

ORDERED that plaintiff shall, within 14 days from entry of this order, serve a copy of this order with notice of entry upon all parties; and it is further

ORDERED that the parties shall appear for further proceedings in Part 40, to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.