Opinion
602877-2007.
November 12, 2009.
Plaintiffs move to certify this action as a class action pursuant to CPLR Article 9.
The underlying claim arises from the alleged failure of defendant The Maramont Corporation (Maramont) to pay named plaintiffs Wuilton Cardona, Noel B. Ortiz, Ana Cardona, Daniel Roman and Corey Robbins (together, plaintiffs), as well as other members of the putative class, prevailing wages and supplemental benefits, as provided for in Sections 6-109 (b) (1) (b) and 6-109 (a) (18) of the Administrative Code of the City of New York (the Code), or living wages and health benefits, as provided for in Sections 6-109 (b) (2) and 6-109 (b) (3) of the Code, whichever is greater (together, prevailing wages and supplemental benefits).
BACKGROUND
In or about 2001, defendant Maramont entered into a number of publicly financed "Food Services Distribution" contracts (the contracts) with certain municipal agencies, including, but not limited to, the City of New York (the City), the New York City Department of Education (the DOE), the New York City Department of Homeless Services (the DOHS) and the New York City Division of Municipal Supply Services (the DOMSS) (Plaintiffs' Reply Affirmation, Exhibits 1-3, Food Service Distribution Contracts). Pursuant to the contracts, Maramont was to provide various food-related catering services to government-run homeless shelters and public schools.
In furtherance of Maramont's performance of the contracts, plaintiffs were employed by Maramont to furnish labor at Maramont's Brooklyn, New York food production facilities. Pursuant to the requirements of section 6-109, plaintiffs, as well as each member of the putative class, were entitled to receive the prevailing rates of wages and supplemental benefits in the amount of approximately $14.00 to $23.00 per hour for their work. However, as reflected in various affidavits, which were submitted by plaintiffs in support of the instant motion for class certification, Maramont only paid them wages ranging from the minimum wage required by law up to $8.00 per hour.
In or about August of 2007, plaintiffs instituted the instant action on behalf of themselves and the other putative class members to recover the monies that they are allegedly owed as a result of being underpaid by Maramont for their services. Specifically, plaintiffs seek certification of a class consisting of:
All individuals employed by Maramont or any other related entities between the years 2001 and 2007 who performed work including receipt, sorting, handling, storing, preparation and/distribution of food, food service supplies, and pre-prepared meals as for Maramont pursuant to the City Service Contracts. The defined class shall not include any clerical, administrative, professional, or supervisory employees
(Plaintiffs' Notice of Motion, Affirmation of Lloyd Ambinder, at 1-2).
Plaintiffs maintain that their motion for class certification should be granted because a class action is the most efficient, most effective and least costly method of resolving this dispute. Defendant Maramont maintains that plaintiffs' motion should be denied in its entirety, as the named plaintiffs (1) cannot meet the rigorous burdens presented by CPLR 901 and 902; (2); failed to file the instant motion within 60 days of defendant's most recent responsive pleading, in contravention of CPLR 902; (3) are barred from seeking class treatment on the ground that section 6-109 implicates penalties in the form of liquidated damages and disbarment; and (4) have proposed a class definition that is overbroad and conclusory.
DISCUSSION
Class action certification serves the goals of "'economies of time, effort, expense, and promote[s] uniformity of decision to persons similarly situated' [citation omitted]" ( Mimnorm Realty Corporation v Sunrise Federal Savings and Loan Association, 83 AD2d 936, 938 [2d Dept 1981]). Plaintiffs have the burden of establishing that the class exists and that the prerequisites have been met ( CLC/CFI Liquidating Trust v Bloomingdale 's, Inc., 50 AD3d 446, 447 [1st Dept 2008] [the party seeking class certification bears the initial burden of establishing the criteria prescribed in CPLR 901 (a)]; Canavan v Chase Manhattan Bank, N.A., 234 AD2d 493, 494 [2d Dept 1996]). The certification of a class is a question vested in the discretion of the trial court ( Small v Lorillard Tobacco Company, 94 NY2d 43, 52; CLC/CFI Liquidating Trust v Bloomingdale's, Inc., 50 AD3d at 447]). CPLR Article 9 is to be liberally construed and any doubts should be resolved in favor of allowing a class action ( Englade v HarperCollins Publishers, Inc., 289 AD2d 159, 159 [1st Dept 2001]; Pruitt v Rockefeller Center Properties, Inc., 167 AD2d 14, 20-21 [1st Dept 1991]; Friar v Vanguard Holding Corporation, 78 AD2d 83, 91 [2d Dept 1980]).
"For an action to proceed as a class action, the plaintiff must demonstrate factually that he represents a genuine class" ( Smith v Atlas International Tours, 80 AD2d 762, 763 [1st Dept 1981]). Courts have certified a class action where, as here, common-law breach of contract claims are asserted involving an employer's failure to pay its employees the prevailing rate and supplemental benefits on public works projects ( see Fata v S.A. Healy Company, 289 NY 401, 406-407; Galdamez v Biordi Construction Corporation, 50 AD3d 357, 357 [1st Dept 2008]; Brandy v Canea Mare Contracting, Inc., 34 AD3d 512, 514 [2d Dept 2006]; Pesantez v Boyle Environmental Services, Inc., 251 AD2d 11, 12 [1st Dept 1998]).
1. Whether plaintiff has met the rigorous burdens presented by CPLR 901 and 902.
CPLR 901 (a) sets forth the following prerequisites to maintain a class action:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interest of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
As will be explained below, plaintiffs in this case have fulfilled all of the above prerequisites for certification of a class action, liberally construed in accordance with the legislative intent in enacting Article 9 ( see Friar v Vanguard Holding Corporation, 78 AD2d at 91]).
1. Numerosity
There is no particular test to determine whether the requirement of numerosity has been met, as "[e]ach case depends upon the particular circumstances surrounding the proposed class" ( Friar v Vanguard Holding Corporation, 78 AD2d at 96). Although plaintiffs are not able to set forth an exact number for their class, it has been sufficiently shown that the putative class is at the very least in excess of 40 members, which makes joinder impracticable ( see Pajaczek v CEMA Construction Corporation, 18 Misc 3d 1140 [A], 2008 NY Slip Op 50386[u] [Sup Ct, NY County 2008] [class certification appropriate where class was 40 members]). To this effect, documents produced by Maramont during discovery list approximately 700 employees employed by Maramont for the period encompassed by this action. In addition, a review of the affidavits submitted by plaintiffs reveals that at least 60 workers, and as many as 700 workers, are potentially affected by plaintiffs' allegations ( see Kudinov v Kel-Tech Construction Inc., 65 AD3d 481, 481 [1st Dept 2009]). Thus, plaintiffs have satisfied the numerosity requirement for class certification.
2. Predominance of Common Issues
CPLR 901 (a) (2) requires that common questions of law or fact predominate over any questions affecting individual members, though it is not necessary that every issue be common to all members of the class ( Super Glue Corporation v Avis Rent A Car System, Inc., 132 AD2d 604, 607 [2d Dept 1987]).
Initially, it should be noted that Maramont advances that plaintiffs are not entitled to class certification because they are incapable of defining an actual class of employees, and because they can only assign speculative damages to each. As a result, Maramont argues that plaintiffs cannot establish the predominance, typicality and superiority requirements for class certification.
In support of this assertion, Maramont contends that it performs a great deal of work for a very large number of clients, both public and private. However, only a small fraction of Maramont's work relates to civil service contracts like ones with the DOE and the DOHS at issue in this case. In addition, Maramont argues that its operational structure precludes any determination of which employees worked on which contracts or for how many hours. Thus, based upon the limited amount of work that Maramont dedicated to the subject contracts, and based upon Maramont's lack of record keeping, plaintiffs cannot possibly identify which Maramont employees are part of the proposed class.
Further, Maramont argues that plaintiffs are not entitled to class certification because the work that plaintiffs performed for Maramont is not subject to the requirements of section 6-109, which regulates the wages and benefits of employees performing "food services" work pursuant to various city service contracts.
According to section 6-109 (a) (8), "[f]ood services" entail "the work preparing and/or providing food." Section 6-109 (a) (8) also sets forth that "[s]uch services shall include, but not be limited to, those as performed by workers employed under the titles as described in the federal dictionary of occupational titles for cook, kitchen helper, cafeteria attendant, and counter attendant." Section 6-109 (a) (8) further requires that "[a]ny contracting agency letting a food services contract under which workers will be employed who do not fall within the foregoing definitions must request that the comptroller establish classifications and prevailing wage rates for such workers."
However, "[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'" ( Kudinov v Kel-Tech Construction Inc., 65 AD3d at 482, quoting Bloom v Cunard Line, Limited, 76 AD2d 237, 240 [1st Dept 1980]). At this class certification stage, any inquiry into the merits of plaintiffs' claim is limited to whether there appears to be a cause of action that is neither spurious nor a sham ( Simon v Cunard Line, Limited, 75 AD2d 283, 288 [1st Dept 1980]). As Maramont has failed to allege facts indicating that plaintiffs' claim constitutes a "sham," there is no basis for this court to consider the merits of the action at this time.
Moreover, pursuant to section 6-109, Maramont was required to keep such records and failed to do so. Specifically, section 6-109 requires that "[a] covered employer shall maintain original payroll records for each of its covered employees reflecting the days and hours worked on contracts, projects or assignments that are subject to the requirements of this section, and the wages paid and benefits provided for such hours worked." Therefore, given that Maramont was required to keep such records and failed to do so, and so that Maramont's failure to fulfill its obligations under the law does not inure to its benefit, the court will give plaintiffs the benefit of the doubt when making its determination as to whether plaintiffs have satisfied the requirements for class certification.
Here, plaintiffs have satisfied the predominance of common issues prerequisite by listing the common factual and legal questions involved in this putative class action, including, but not limited to, (1) whether the work performed by the putative class members entailed "food services" work, as defined by the applicable New York law; (2) whether schedules of the applicable prevailing rates of wages and benefits to be paid to all workers furnishing labor in furtherance of the contracts were annexed to said contracts; (3) whether the contracts required payment of prevailing wages and supplemental benefits; and (4) whether Maramont violated New York law by failing to pay said workers prevailing wages and supplemental benefits.
In addition, as plaintiffs maintain, the only difference between the claims of each class individual in this case relates to the amount of damages owed to each individual. However, although there may be some variety in the claims regarding the amount of damages, including the number of hours each employee worked and the amount each employee was to be paid per hour, the common questions predominate. Thus, that potential class members might be afforded different damages amounts does not defeat class certification ( see Kudinov v Kel-Tech Construction Inc., 65 AD3d at 482] [the fact that different trades were paid on a different wage scale, and thus, they were entitled to different damages, did not defeat class certification]; Englade v HarperCollins Publishers, Inc., 289 AD2d at 160 [that individual authors had different levels of damages did not defeat class certification]; Mimnorm Realty Corporation v Sunrise Federal Savings and Loan Association, 83 AD2d at 938 [the fact that proof of damages differed for each class member because they worked a different number of hours was not a sufficient reason to deny class status]).
In any event, "[t]o the extent that there may be differences among the class members as to the degree in which they were damaged, the court may try the class aspects first and have the individual damage claims heard by a special master or create subclasses" ( Godwin Realty Associates v CATV Enterprises, Inc., 275 AD2d 269, 270 [1st Dept 2000]).
3. Typicality
CPLR 901 (a) (3) requires that the named plaintiffs' claims be typical of the proposed class. This 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 are based upon the same legal theory ( Friar v Vanguard Holding, 78 AD2d at 99]). It is not required that the named representatives' claims be identical to those of the class ( Branch v Crabtree, 197 AD2d 557, 557 [2d Dept 1993]).
Plaintiffs have satisfied the typicality requirement by submitting affidavits from putative class members wherein they assert that they were employed by Maramont pursuant to public contracts and that they were not paid the appropriate prevailing wages and supplemental benefits. As a result, plaintiffs' proposed representative claims are typical of those of the putative class members, as they arise "out of the same course of conduct as the class members' claims and [are] based on the same cause of action" ( Pruitt v Rockefeller Center Properties, Inc., 167 AD2d at 22).
4. Fair and Adequate Representation
CPLR 901 (a) (4) requires that the named plaintiffs be in a position to adequately protect the interests of the members of the class in the litigation. In order to determine whether the representative party is an adequate class representative, it is necessary to consider such factors as (1) whether a conflict of interest exists between the representative and the class members; (2) the representative's background and character, including his familiarity with the lawsuit; (3) the competence of the representative's attorney; and (4) the financial resources available to prosecute the class action ( see Pruitt v Rockefeller Center Properties, Inc., 167 AD2d at 24).
Here, there is nothing in the record to indicate that plaintiffs and their counsel could not fairly and adequately represent the class. Plaintiffs, as well as the members of the putative class, have a common financial interest in recovering the amount of wages and supplemental benefits that they were allegedly underpaid. In addition, plaintiffs have retained experienced counsel with prior experience in litigating class actions.
Moreover, class counsel in this case has agreed to advance all costs of this litigation, and plaintiffs have agreed to reimburse said counsel for all expenses in the event that this litigation is successful ( see Wilder v May Department Stores Company, 23 AD3d 646, 648-649 [2d Dept 2005] [when a plaintiff's attorney promises to assume responsibility for litigation expenses, "the plaintiff's personal financial condition becomes irrelevant"). 5. Superiority of Class Action
Lastly, CPLR 901 (a) (5) requires that the class action method be superior to other methods. Here, plaintiffs have successfully set forth that a class action is the superior method of pursuing the instant litigation in light of the relatively small size of the claim and the large number of putative class members ( see Pesantez v Boyle Environmental Services, Inc., 251 AD2d at 12 [Court recognized that class action is the best method of adjudication in a case seeking prevailing wages and benefits]). CPLR 902 Factors
In addition to meeting the requirements as set forth in CPLR 901, plaintiffs must also meet the considerations as set forth in CPLR 902, which lists certain factors that the court must consider in determining whether a particular action may proceed as a class action. These factors that the court shall consider in determining whether the action may proceed as a class action include:
1. the interest of members of the class in individually controlling the prosecution or defense of separate actions;
2. the impracticality or unefficiency of prosecuting or defending separate actions;
3. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
4. the desirability or undesirability of concentrating the litigation of the claim in the particular forum;
5. the difficulties likely to be encountered in the management of a class action.
The factors listed in CPLR 902 are not exhaustive. Instead, "the court may also consider the merits of the action to the extent necessary for the elimination, as early as possible, of spurious actions" ( Hoerger v Board of Education of Great Neck Union Free School District, 98 AD2d 274, 278 [2d Dept 1983]). In addition, "[t]hese criteria should be broadly construed not only because of the general command for liberal construction of all CPLR sections ( see CPLR 104), but also because it is apparent that the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it" ( Friar v Vanguard Holding Corporation, 78 AD2d at 91).
Here, plaintiffs have met the requirements set forth in CPLR 902. Most of these considerations are implicit in CPLR 901, and thus, they have already been considered. As discussed prior, it would be impractical and inefficient to pursue independent actions for the wages and benefits owed ( see CPLR 901 [a] [5]). In addition, class counsel has successfully argued that there would be little trouble in managing a class action in this case when compared to the possibility of managing separate and numerous actions ( see CPLR 902 [a] [5]). In fact, most of the individual differences among class members can be resolved by the documentary evidence of payroll checks and time sheets ( see Pesantez v Boyle Environmental Services, Inc., 251 AD2d at 12 [Court noted the "lack of any serious problems in managing the claims of a maximum of 300 individuals where most of the individual differences can be resolved by the documentary evidence of payroll checks and time sheets"). Notably, no other actions have been commenced by potential class members ( see CPLR 902 [a] [1] and [3]).
2. Whether plaintiffs' motion for class certification is timely.
Defendant Maramont asserts that plaintiffs' motion for class certification should be denied due to untimeliness. CPLR 902 provides that a motion for class certification be made "'[w]ithin sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action'" ( see Kensington Gate Owners, Inc. v Kalikow, 99 AD2d 506, 506 [2d Dept 1984).
Plaintiffs commenced the instant action on or about August 24, 2007. On or about November 6, 2007, in response to plaintiffs' initial complaint, defendant Maramont moved to dismiss each of plaintiffs' causes of action. By decision and order, dated March 12, 2008, the court denied every cause of action except plaintiffs' breach of contract claim, which alleged violations of section 6-109 of the Code. Thereafter, on April 3, 2008, defendant Maramont answered the initial complaint. Plaintiffs moved to amend the complaint by adding three named plaintiffs and to conform said pleading with the court's March 12, 2008 decision and order. Maramont answered plaintiffs' amended complaint on October 27, 2008. In a so-ordered stipulation, dated October 30, 2007, counsel for plaintiffs and Maramont entered into a briefing schedule for Maramont's anticipated motion to dismiss. Said stipulation stated, in pertinent part, that:
To the extent that [defendant's] motion is denied in whole or in part, pre-class certification discovery demands shall be served within 30 days of Notice of Entry. Responses due 30 days thereafter. Pre-class certification depositions completed within 70 days after Notice of Entry. Class certification briefing schedule to be determined by Court
( see October 30, 2007 So-Ordered Stipulation, Plaintiffs' Reply Affirmation, Exhibit 8). Plaintiffs filed the instant motion for class certification on May 19, 2009.
Defendant Maramont argues that plaintiffs' motion for class certification is untimely, because, pursuant to CPLR 902, plaintiffs were required to file their class certification motion by December 27, 2008, which was 60 days from Maramont's last responsive pleading.
Although plaintiffs' motion for class certification is untimely, in light of the above-mentioned court's instruction that the class certification briefing schedule would be determined by the court at some future date, and since said date has not been set to date, the court exercises its discretion in deeming plaintiffs' motion timely.
In any event, it should be noted that untimely motions have been deemed timely where there have been delays during discovery ( see Galdamez v Biordi Construction Corporation, 50 AD3d at 358 [to the extent that the motion for class certification was untimely, the court providently exercised its discretion in deeming it timely since the delay was largely the result of defendant's conduct during discovery]).
As plaintiffs contend, due to Maramont's failure to provide sufficient discovery responses, it was necessary for plaintiffs to file a motion to compel discovery against it, which delayed certain depositions. This issue was ultimately resolved by this court's so-ordered discovery stipulation, dated December 18, 2008 and filed January 14, 2009.
3. Whether plaintiffs' action is permissible pursuant to CPLR 901 (b).
CPLR 901 (b) provides that "[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action." As such, CPLR 901 (b) disallows a class action when the statute under which the action is brought imposes a penalty, unless the statute specifically authorizes a class action ( Carter v Frito-Lay, Inc., 74 AD2d 550 [1st Dept 1980], affd 52 NY2d 994).
Defendant Maramont argues that CPLR 901 (b) does not allow class certification in the instant case, because section 6-109 specifically provides for penalties and does not provide for recovery of any penalty by way of a class action. However, as Maramont concedes, the provision in CPLR 901 (b) does not bar a class action to recover unpaid wages and benefits due pursuant to the applicable prevailing rate of wages and supplemental benefits, so long as the putative class members are afforded the opportunity to opt out of the class to pursue the statutory remedy for liquidated damages and penalties ( see Pesantez v Boyle Environmental Services, Inc., 251 AD2d at 12 [Court noted that, to the extent that certain individuals wished to pursue punitive damages, pursuant to Labor Law § 198, which could not be maintained in a class action, they could opt out of the class action]; Super Glue Corporation v Avis Rent A Car System, Inc., 132 AD2d at 606). Thus, so long as the putative class members are afforded the opportunity to opt out of the class, class certification will not be denied on this ground.
4. Whether plaintiffs' proposed class definition is overbroad and conclusory.
Maramont asserts that, in light of the language of section 6-109 (a) (8), which defines "food services" as "the work preparing and/or providing food," plaintiffs' proposed class of individuals, which includes those workers who received, sorted, handled, stored, prepared and distributed food and food services supplies for Maramont, is overbroad and conclusory.
To that effect, Maramont maintains that it does not employ any cooks, kitchen helpers, or food counter attendants, as contemplated by section 6-109, at its 1st Avenue location in Brooklyn, New York. Rather, Maramont employs assembly line workers who repackage pre-prepared food and then deliver it to the DOHS and the DOE, which, in turn, heat and serve the food. In addition, Maramont asserts that very little food production work, if any, is performed at its Pitkin facility, as this facility's sole function is that of a food supplier to the DOE. In any event, as to the Pitkin/DOE contract, Maramont argues that, as it fails to include any language relative to section 6-109, the Pitkin employees are not subject to section 6-109.
However, as discussed prior, in light of the fact that plaintiffs' claims that the purported class members provided food services have not been shown to be either spurious or a sham, inquiry into the merits of plaintiffs' claim is inappropriate at this time ( see Brandon v Chefetz, 106 AD2d 162, 168 [1st Dept 1985]).
Accordingly, plaintiffs' motion for class certification is granted.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that plaintiffs' motion for certification of the class indicated in their motion papers is hereby granted in its entirety.
Settle order.