Rosario v. Hallen Constr. Co., Inc.

2025 NY Slip Op 30089(U)

• Court: New York Supreme Court, New York County
• Decided: January 9, 2025
• Docket: Index No. 157141/2021
• Status: Unpublished

Opinion

Rosario v Hallen Constr. Co., Inc. 2025 NY Slip Op 30089(U) January 9, 2025 Supreme Court, New York County Docket Number: Index No. 157141/2021 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157141/2021 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 01/10/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice -------------------X INDEX NO. 157141/2021 DANIEL ROSARIO, DEAN LEWIS, INDIVIDUALLY AND ON MOTION DATE 05/15/2024 BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY THE HALLEN CONSTRUCTION CO., INC. MOTION SEQ. NO. 002

Plaintiff,

- V - DECISION + ORDER ON THE HALLEN CONSTRUCTION CO., INC., MOTION

Defendant. -------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 47, 48, 49, 50, 51, 52,53,54, 55,56, 57, 58, 59,60,61,62,63,64,65,66,67,68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,81,82,83, 84,85,86,87,88,89,90,91,92,93,94,95,96,97,98,99, 100,101,102,103,104,105, 106,107,108,109,110,111,112,113,114,115,116,117,118,119 were read on this motion to/for MISCELLANEOUS

APPEARANCES:

Virginia & Ambinder, LLP, New York, NY {Jack Newhouse, Esq., of counsel), for plaintiffs.

Rivkin Radler, LLP, Uniondale, NY (John K. Diviney, Esq., and Greg Eric Mann, Esq., of counsel), for defendant.

EMILY MORALES-MINERVA, J.S.C.

Upon the foregoing documents, and oral argument held on in

Part 42M, 111 Centre Street, New York, NY, on January 07, 2024,

at 11:00 A.M., the Court determines as follows.

In this Labor Law action for failure to pay wages and

failure to pay overtime (see generally Labor Law§§ 191 and

633), plaintiffs DANIEL ROSARIO and DEAN LEWIS, individually,

and on behalf of others similarly situated (plaintiffs) move, by

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motion sequence no. 002, for an order certifying that this case

may proceed as a class action (see CPLR §§ 901, 902).

Defendant THE HALLEN CONSTRUCTION CO., INC. (Hallen Co.)

opposes the motion in its entirety. It argues broadly that

(1) the circumstances particular to the individual members

prevent the requisite commonality and typicality required for

class certification, and that (2) better methods than a class

action exist for the adjudication of this controversy.

In the alternative, subject to the court granting the

motion, Hallen Co. requests modification of plaintiffs' proposed

notice and publication order for class certification.

For the reasons discussed below, the court grants

plaintiffs' motion, and grants defendant's request for

modification of the proposed notice and publication order, on

plaintiffs' consent.

BACKGROUND

Defendant THE HALLEN CONSTRUCTION CO., INC. (Hallen Co.),

is a construction company whose principal business is performing

gas and electrical work in New York, New York. Plaintiffs

DANIEL ROSARIO and DEAN LEWIS, and putative class members, are

construction laborers and/or labor foremen (plaintiffs), who

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worked in those capacities for Hallen Co. from August 2015 to

the present.

Plaintiffs allege that, during said time, Hallen Co. had a

de facto policy and/or practice of requiring them to travel to

the employer's yard on workdays at or around 6:00AM to pick up

vehicles, load trucks, retrieve paperwork and/or obtain work

assignments (see NY St Cts Elec Filing [NYSCEF] Doc. Nos. 50-62,

Affirmations of Plaintiffs). Further, plaintiffs allege that

they would then drive from the yard to their project sites and,

at the end of the day, return to Hallen Co.'s yard before

heading home (see id.).

According to plaintiffs, these activities constituted work

for which they did not receive pay. Therefore, plaintiffs seek

"unpaid wages for: (ii) show-up time·at Hallen's yard;

(ii) travel time from Hallen's yard to the first work site, and

i) travel time from the work site back to Hallen's yard at

the end of the day" (NYSCEF Doc. No. 47, notice of motion,

exhibits B to N). However, Hallen Co. contends that it

compensated plaintiffs correctly and that no de facto policy

existed or exists in the company, requiring employees to engage

in the alleged activities without pay.

Consequently, plaintiffs DANIEL ROSARIO and DEAN LEWIS,

individually, and on behalf of others similarly situated,

commenced this action against Hallen Co., asserting causes of

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action for unpaid wages and unpaid overtime, pursuant to Labor

Law§§ 191 and 633. Now, by motion sequence no. 002, plaintiffs

move for an order, certifying that this case may proceed as a

class action (see CPLR §§ 901, 902).

New York State's class action mechanism is codified in

article 9 of the CPLR see L 1975, ch 207, § 1), which is "to be

construed liberally in favor of class certification" {see

Chernett v Sprue 1209, LLC, 200 AD3d 596, 598 [1st Dept 2021]

[citations omitted]). This is due to "the general command for

liberal construction of all CPLR sections see CPLR 104)" and

the Legislature's "intent[ion for] article 9 to . . . substitute

for the narrow class action legislation which preceded it" (City

of New York v Maul, 14 NY3d 499, 509 [2010]).

It follows that to prevail on class certification

plaintiffs need only satisfy "the minimum threshold that their

claim [is] not a sham" {Chua v Trim-Line Hitech Contr. Corp.,

225 AD3d 565, 565 [1st Dept 2024]; see also Teshabaeva v. Family

Home Care Servs. of Brooklyn & Queens, Inc., 220 AD3d 519, 520-

521 [1st Dept 2023)). Further, plaintiffs must establish -- by

competent evidence in admissible form (see Weinstein v Jenny

Craig Operations, Inc., 138 AD3d 546, 546 [1st Dept 2016]) --

the following prongs:

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1. the class is so numerous that joinder of 11

all members, whether 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 [commonality];

3. the claims or defenses of the 11

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

4. the representative parties will fairly 11

and adequately protect the interests of the class [adequacy]; and

5. a class action is superior to other 11

available methods for the fair and efficient adjudication of the controversy [superiority] 11

(CPLR § 901; see also Maddicks v Big City Props., LLC 34 NY3d

116, 123 [2019] [stating section 901 covers "five [requisite]

factors - sometimes characterized as 'numerosity, commonality,

typicality, adequacy of representation and superiority'"],

quoting City of New York v Maul, 14 NY3d at 508).

Here, no dispute exists as to the merits of the claims for

purposes of certification. Also, no dispute exists that

plaintiff established numerosity or adequacy, pursuant to CPLR

§ 9 01 (a} {1 ) and {4 ) .

Therefore, the questions presented are whether plaintiffs

established (1) commonality -- that the questions of law or fact

common to the class predominate over questions affecting only

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individual members, (2) typicality that the claims or

defenses are typical of the class, so that the representative

parties also advance the interests of the absent class members,

and (3) superiority -- that class action litigation is superior

to other available methods of adjudicating the subject claims.

This court answers each of these questions in the

affirmative, as discussed, in turn, below.

Commonality

The commonality prerequisite "requires predominance of

common questions over individual questions, not identity or

unanimity of common questions, among class members 11 (Burdick v

Tonoga, Inc., 179 AD3d 53, 56 [3d Dept 2019], citing Ferrari v

National Football League, 153 AD3d 1589, 1591 [2017]). Further,

existing "question[s] peculiar to each individual [are]

·not fatal" to class action certification (City of New York v

Maul, 14 NY3d at 514 [internal quotation marks and citations

omitted; Burdick, 179 AD3d at 56]).

Key is the existence of a central issue that once

determined -- has a direct impact on the validity of each one of

the individual claims see Burdick, 179 AD3d at 56, citing Wal-

Mart Stores, Inc. v Dukes, 564 US 338, 350 [2011]).

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Applying this standard here, plaintiff has established

commonality. The crux of this action is the allegation that

Hallen Co. has a de facto policy or practice that resulted in

laborers and labor foreman engaging in unpaid work and overtime

from August 2015 until the present. Determination of this

common issue of fact is dispositive to the individual claims of

injury.

Further, individualized damage assessments based on the

alleged de facto policy or practice do not undermine commonality

(seegenerally Chua, 225 AD3d at 566 [1st Dept 2024)). The

difference in determining the amount, if any, of unpaid wages or

overtime, appears irrelevant to the main question whether such a

systemic practice exists.

The court finds unavailing Hallen Co.'s argument that

commonality is lost here because the determination of

plaintiffs' compensation depends on factors that must be

resolved in "mini-trials [sic] for each construction employee

and each workweek" (NYSCEF Doc. No. 69, memorandum of law in

opposition, p 21).

First, the argument is conclusively stated and sounds more

like an argument based on damages being individualized. Second,

the trial court decision upon which Hallen Co. relies for this

contention is clearly distinguishable from the facts alleged

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here (see Carni v Continental Home Loans, Inc., 44 Misc. 3d 788

[Sup Ct Nassau Cty 2014]).

In Carni, the trial court found against commonality where

the proposed class consisted of bank loan officers, alleging a

failure to pay overtime see id., at 796). Said "plaintiffs'

claims pertain[ed] to differently classified loan officers, in

different Continental locations, under different managers, who

performed duties inside and outside of their offices to varying

degrees in different way" (id. at 798 [citation omitted]).

Given those many differences, the court concluded that "common

legal and/or factual issues d[id] not predominate over [the)

individualized claims and [that) the interests of judicial

economy would not be served" in adjudicating the issues through

a class action (id. at 799).

In stark contrast, this case involves the allegation of a

singular de facto policy or practice involving laborers and

labor foremen reporting to, working at, and/or traveling to the

same yard, during a specific time (see generally Maddicks v Big

City Props., LLC, 34 NY3d at 125 [finding commonality where a

complaint addressed "harm effectuated through a variety of

approaches but within a common systemic plan"]).

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Typicality

To satisfy the typicality requirement, plaintiffs must show

that their "claims derive 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" (Kozak v.

Kushner Vil. 329 E. 9th St. LLC, 2024 NY App Div LEXIS 6244,

*5-6, 2024 NY Slip Op 05891 [1st Dept 2024] quoting Pludeman v

Northern Leasing Sys., Inc., 74 AD3d 420, 423 [1st Dept 2010}}.

Here, again, plaintiffs have satisfied their burden.

Plaintiffs allege having faced a systemwide denial of wages and

overtime at a particular work yard, as opposed to isolated

difficulties, and they seek the same relief. This shared fact

pattern gives rise to corresponding legal issues in the context

of the stated causes of action, pursuant to Labor Law§§ 191 and

633.

Further, as previously stated in the context of

commonality, individualized damage assessments based on the

alleged practice of unpaid wages "does not weigh substantially

against class certification" (Chua, 225 AD3d at 566, citing

generally Brown v Mahdessian, 206 AD3d 511, 512 [1st Dept

2022]; Weinstein v Jenny Craig Operations, Inc., 138 AD3d 546,

547 [1st Dept 2016]}.

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Superiority

Plaintiffs have also established that "a class action [on

this matter] is superior to other available methods for the fair

and efficient adjudication of the controversy" (CPLR § 901 [a]

[5]). This case involves allegations of unpaid wages and

overtime, and the controlling Appellate Division, has broadly

held that a class action is the "superior vehicle" for resolving

wage disputes, even where class members have'different work

histories (Rodriguez v. Tri-Borough Certified Home Care, Ltd.,

227 AD3d 557, at 558 [1st Dept 2024], citing ~Chua,225 AD3d

at 565; Lavrenyuk v Life Care Servs., Inc., 198 AD3d 569, 570

[1st Dept 2021], lv dismissed 38 NY3d 1021 [2022]).

This type of claim -- concerning allegations that a company

failed to pay laborers and labor foremen -- is "unlikely to

[otherwise] be litigated because the costs of individual cases

outweigh the possible damages . . . " (Andryeyeva v New York

Health Care, Inc., 33 NY3d 152, 183-184 (2019] [explaining New

York's statutory class certification in the context of class

certification motions on behalf of home healthcare aids], citing

Sperry v Crompton Corp., 8 NY3d 204, 213 (2007] [ "class actions

are designed.in large part to incentivize plaintiffs to sue when

the economic benefit would otherwise be too small, particularly

when taking into account the court costs and attorneys' fees

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typically incurred"]; Letter from Stanley Fink, June 2, 1975,

Bill Jacket, L 1975, ch 207 ["{article 9) will enable persons

similarly aggrieved to enforce existing substantive rights,

which presently go without redress solely because of the

financial impracticability of financing individual suits"]; 82

NY Jur 2d, Parties §254 ["The statutory criteria governing the

permissibility of class actions should be liberally construed so

as to allow for the adjudication of claims that would not be

economically litigable except by means of a class action"]).

Having found plaintiffs have satisfied the prerequisites of

CPRL § 901, the court turns to Hallen Co.'s request, in the

alternative, that plaintiffs modify the proposed notice and

publication order. On record, during oral arguments, the

parties consented to the court granting said request and issuing

an order directing plaintiffs to file the modified documents.

Accordingly, it is

ORDERED that motion (sequence no. 002) of plaintiffs DANIEL

ROSARIO and DEAN LEWIS, individually and on behalf of all other

persons similarly situation, is granted; it is further

ORDERED that plaintiffs shall submit a modify proposed

order and publication notice, in accordance with defendant

HALLEN CONSTRUCTION CO., INC.'s objections thereto as set forth

in defendant's memorandum of law in opposition, dated July 12,

2024, p 25 and 26 (NYSCEF Doc. No. 69); it is further

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ORDERED that plaintiffs shall file the proposed notice and

publication order with the court within 30 days of this order

with notice of entry; and it is further

ORDERED that plaintiffs shall serve defendants with notice

of this order with notice of entry within 10 days of such entry.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

1/9/2025 DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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