Galdamez v. Biordi Construction Corp.

50 A.D.3d 357, 855 N.Y.S.2d 104

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 23, 2006, which granted plaintiffs’ motion to certify a class in an action to recover the prevailing rate of wages and supplemental benefits pursuant to Labor Law § 220, and for leave to prosecute the action on behalf of the class, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion in holding that plaintiffs met their burden of demonstrating the prerequisites for class action certification under CPLR 901 and 902 (see Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1998]). Contrary to defendants’ contention, plaintiffs sufficiently established that the class was so numerous that joinder of all members was impracticable (see Pesantez v Boyle Envtl. Servs., 251 AD2d 11 [1998]; see also Robidoux v Celani, 987 F2d 931, 935-936 [1993]), and the court properly considered affidavits from several members of the proposed class submitted on reply since the affidavits were in response to matters raised in defendants’ opposition (see Ticor Tit. Guar. Co. v Bajraktari, 261 AD2d 156, 157 [1999]). Furthermore, to the extent the motion for class certification was untimely, the court providently exercised its discretion in deeming it timely since the delay in moving was largely the result of defendants’ conduct during discovery (see Caesar v Chemical Bank, 118 Misc 2d 118, 121 [1983], affd 106 AD2d 353 [1984], mod on other grounds 66 NY2d 698 [1985]).

We have considered defendants’ remaining contentions and find them unavailing. Concur—Tom, J.P., Saxe, Nardelli and Williams, JJ. [See 13 Misc. 3d 1224(A), 2006 NY Slip Op 51969(U).]