Opinion
34590/03.
Decided September 13, 2005.
Plaintiffs move for an order, pursuant to CPLR 901 and 902, certifying the above-captioned matteras a class action. Defendants, Inter-Connection Electric, Inc. (Inter-Connection) and Jeff Skowronski (Skowronski) (collectively, the Prime Contractor), cross-move for an order: denying class certification to plaintiffs on the ground that (a) a class action pursuant to CPLR 901(b), may not be maintained because their claims seek statutory liquidated damages under statutes that do not specifically authorize recovery of those damages in a class action; (b) the class pursuant to CPLR 901(a)(1), is not so numerous that joinder of all members, whether required or permitted, is impracticable; (c) the claims of the representative parties pursuant to CPLR 901(a)(4), are not typical of the claims of potential class members where plaintiffs did not perform work on certain public works projects they propose to include in the class; (d) an administrative proceeding pursuant to CPLR 902(3), is currently pending before the New York State Department of Labor (DOL)covering some of the same issues herein; and, (e) pursuant to the Fair Labor Standards Act, plaintiffs on the ground that plaintiffs have not filed required federal consents with the court. In addition, defendants seek dismissal of the Second Amended Complaint as against defendants Inter-Connection and Skowronski, pursuant to CPLR 3211(a)(7), with respect to certain identified federally-funded construction projects on the ground that plaintiffs' claims are preempted by federal law and therefore, as a matter of law, fail to state a cause of action with respect thereto; and, pursuant to CPLR 3211(a)(7), Since the plaintiffs have failed to state a claim as to a private construction project known as Luna Park Houses where prevailing wages were not required by the general contract or otherwise. Lastly, the defendants request costs and reasonable attorney's fees.
Defendants/third-party plaintiffs, First National Insurance Company of America (FNIC) and RLI Insurance Company (RLI) (collectively, the Sureties) cross-move for an order: (a) pursuant to CPLR 3212(b), granting partial summary judgment dismissing counts 12 and 13 of the Second Amended Complaint to the extent that plaintiffs seek recovery from FNIC with respect to certain construction projects referenced in the complaint, and from RLI with respect to a certain other public works construction project referenced therein, because plaintiffs' claims are preempted by federal law, specifically, the Davis-Bacon Act ( 40 U.S.C. § 3141 et seq); (b) pursuant to CPLR 3212(b), in so far as plaintiffs seek recovery from either FNIC or RLI with respect to the City College of New York and the New York City Transit Authority "G" Line Renovation public works construction projects, on the ground that plaintiffs have failed to state a cause of action with respect to those projects since neither FNIC or RLI issued surety bonds in connection with those construction projects on behalf of defendant Inter-Connection; and, (c) pursuant to CPLR 3212(b), in as much as plaintiffs seek recovery from RLI with respect to the New Cambria Heights Library and Castle Hill Houses projects, and from FNIC with respect to the 1010 East 178th Street Development project, on the ground that plaintiffs have failed to state a cause of action against said defendants as to those projects since that plaintiffs did not provide labor to Inter-Connection (on whose behalf RLI and/or FNIC acted as surety) on those projects. Defendants/third party plaintiffs also request pursuant to CPLR 906(2), that the purported class of plaintiffs be divided into subclasses.
BACKGROUND AND CONTENTIONS
The named plaintiffs and other members of the putative class allege that defendants Inter-Connection and Skowronski failed to pay or failed to insure payment, at the prevailing rates mandated by Article 1, § 17 of the New York State Constitution and the New York State Labor Law § 220, of wages and supplemental benefits for work plaintiffs performed on numerous public works projects. For the omission, they seek enforcement of various labor and material payment bonds issued by FNIC and RLI guaranteeing the obligations of the Prime Contractor.
Plaintiffs seek certification of a class consisting of "the Plaintiffs and a class of all individuals, including past or present employees of INTER-CONNECTION ELECTRIC, INC., and any related corporate entities, subcontractors and affiliates who performed construction related work, and all work incidental thereto on all publicly financed projects in New York State for various municipal agencies, including but not limited to THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF DESIGN AND CONSTRUCTION, THE NEW YORK CITY HOUSING AUTHORITY, THE STATE OF NEW YORK, THE METROPOLITAN TRANSPORTATION AUTHORITY and/or THE NEW YORK STATE DORMITORY AUTHORITY.
Section 220(5)(a) of the Labor Law defines the "prevailing rate of wages" as "the rate of wage paid in the locality . . . by virtue of collective bargaining agreements between bona fide labor organizations and employers of the private sector, performing public or private work provided that said employers employ at least thirty per centum of workers, laborers or mechanics in the same trade or occupation in the locality where the work is being performed."
Said projects include Queens College; Civil Courthouse, Manhattan, New York City Transit Authority "G" Line renovation at Continental Avenue, Breevort Housing Project, Wyckoff Gardens Houses: New Cambria Heights Library, Bay Ridge Library, and the renovation of the Supreme Court, Appellate Division Courthouse on Madison Avenue.
Plaintiffs
Beginning in or about 1998, the Prime Contractor entered into certain public works contracts with various municipal agencies calling for the Prime Contractor to perform general construction work. Pursuant to the Public Works Contracts, the Prime Contractor was responsible for paying and or ensuring the payment of prevailing wages and supplemental benefits to the named plaintiffs and all members of the putative class.
Labor Law § 220 provides in relevant part:"3. The wages to be paid for a legal day's work . . . to laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages . . ." ( see also Monarch Elec. Contracting Corp. v. Roberts, 70 NY2d 91 [1987]; Emes Heating Plumbing Contractors Inc. v. McGowen, 279 AD2d 819 [2001]). Although "a private right of action for underpayment of wages does not exist under Labor Law § 220 until there has been an administrative determination pursuant to subdivision (8) that either has gone unreviewed or been affirmed in the claimants-employees' favor" (citations omitted) ( Pesantez v. Boyle Environmental Services, Inc., 251 AD2d 11, 12 [1998]), it has long been held that a plaintiff can assert third-party beneficiary status and proceed, as here, on common-law breach of contract claims for underpayment of wages and benefits ( see Fata v. S.A. Healy Co., 289 NY 401 [1943]). In addition, Labor Law § 220-g allows an aggrieved employee to bring an action against the surety to recover on a bond issued pursuant to section 137 of the State Finance Law.
Plaintiffs, who allege that they worked as electricians and in other construction trades for Inter-Connection, are overwhelmingly of Polish national origin and primarily employ English as a second language. They commenced this action for their own wage claims and to represent a putative class of similarly employed individuals to recover wages, benefits, and liquidated damages to which they contend that they were statutorily and contractually entitled to receive for work that they performed. In their Second Amended Complaint, plaintiffs allege that the action "is properly maintainable as a class action pursuant to Article 9 of the New York Civil Practice Law and Rules" in that,
"The putative class is so numerous that the joinder of all members is impracticable. The size of the putative class is believed to be in excess of 100 individuals. In addition, the names of all potential members of the putative class are not known. The claims of the Plaintiffs are typical of the claims of the putative class." Thus, asserting that a class action is the most efficient, most effective and least costly method of resolving the dispute, plaintiffs seek class certification pursuant to CPLR article 9.
Plaintiffs havw name Jeff Skowronski, whom they believe to be an officer, principal and/or director of Inter-Connection, as an individual defendant on the theory that principles of law and equity permit the piercing of the corporate veil in this instance.
Additionally, plaintiffs bring this action against the Sureties who issued various labor and material payment bonds guaranteeing the obligations of the prime contractor and all its respective subcontractors and affiliates, pursuant to the stated requirements of the public works contracts. Plaintiffs contend that under the terms of the bonds, the Sureties expressly guaranteed that if the Prime Contractor or any of the Prime Contractor's respective subcontractors, joint venturers and/or affiliates failed to pay workers the prevailing rates of wages and supplemental benefits, the Surety which underwrote the bond for the particular project would make payment to all workers who were underpaid.
The Prime Contractor defendants
Inter-Connection and Skowronski set forth several overlapping grounds for rejecting plaintiffs' motion for class certification and for dismissal of certain causes of action alleged in the complaint. As a preliminary issue, defendants point to the provisions of CPLR 901 (b), which prohibits maintaining a class action to recover liquidated damages, and contend that the second amended complaint seeks liquidated damages in the fifth, sixth, seventh, eighth, tenth and eleventh causes of action.
The Prime Contractor defendants further contend that class certification should be denied because numerosity and appropriate representation are not present. In asserting that the "class" lacks numerosity, Inter-Connection and Skowronski claim that of a total of 47 employees who worked on public projects for Inter-Connection during the period from January 2001 through September 2003, 31 of them subsequently settled their claims and signed releases which discharged the defendant from any liability. Out of the remaining employees, six individuals purportedly have settlements pending, three employees, who allegedly worked on certain projects, have claims that are preempted by federal statute or require deferral to a state administrative agency, and one employee, as an illegal entrant to the United States, has no right to sue. Defendants thus conclude that apart from the five named plaintiffs, only one other individual is a potential class member.
Defendants further allege that the individual settlements were achieved under fair and regular circumstances following the workers' consultation with counsel, who translated and explained the documents, as well as full disclosure to each worker which included notice of the pendency of this lawsuit and the employees' inclusion in the DOL proceeding. Said settlements, defendants contend specifically released them from prevailing wage claims, evinced the settling workers' intent to opt out of this action, and must be honored by this court.
In challenging plaintiffs' claims of typicality, the Prime Contractor defendants aver that: (1) based upon affidavits and deposition testimony, plaintiffs have not demonstrated that they worked on the New Cambria Heights Library, Castle Hill, or 178th Street Development projects; (2) the Breevort and Wyckoff Gardens projects were federally-funded and thus pre-empted by federal law; and (3) the Luna Park Houses project was a private improvement venture and is therefore not subject to the relevant prevailing wage statutes.
Defendants assert that the contracts for the Castle Hill Houses, 178th Street Development, Wyckoff Gardens and Breevort Houses projects are each federally funded, and provide that wages and benefits are to be paid as determined by the United States Secretary of Labor pursuant to the Davis-Bacon Act (40 USC § 276-a, et seq.).
Defendants indicate that the Insignia Group, a private investment group, is the major principal of Luna Park Housing Corp.
As to the remaining projects, defendants, pointing to the deposition testimony of the individual plaintiffs, assert that plaintiffs' work time is not typical, and that Jeff Skowronski testified that Inter-Connection only performed a few days of work on the NYC Transit Authority "G" Line Renovation Project. They go on to assert that plaintiffs are not proper representatives with regard to periods of time prior to their employment on public work projects for Inter-Connection because, notwithstanding plaintiffs' motion to represent a class of all workers on the subject projects commencing in 1998, the named plaintiffs did not perform any work for defendants prior to January 2001.
The Prime Contractor defendants allege that the remaining projects include: (1) City College of New York; (2) Manhattan Civil Courthouse; (3) NYC Transit Authority "G" Line Renovation (Continental Avenue); (4) Bay Ridge Library; and (5) Appellate Division Courthouse (Madison Avenue).
Additionally, the Prime Contractor defendants, in support of their position that plaintiffs' Fair Labor Standards (FLSA) causes of action must be dismissed for lack of proper commencement, contend that plaintiffs have failed to plead compliance with 29 USC § 216(b) of the FLSA, pursuant to which every plaintiff and potential class member, in order to be considered part of the collective action, must file "opt-in" consents. Finally, the Prime Contractor defendants seek denial of plaintiffs' motion for class consideration based upon the existence of a pending investigation before New York State's Department of Labor as to potential claims relating to the Queens College Powdermaker Hall project, where an order directing the payment of any wages found to be owed would duplicate the relief sought here.
The Sureties
RLI and FNIC issued surety bonds on behalf of Inter-Connection with respect to a number of projects. In opposition to plaintiffs' motion and in support of their cross motion for partial summary judgment, they seek dismissal of those claims: (1) arising from federally-funded projects because such claims are preempted by Federal Law; (2) relating to construction projects for which the Sureties did not issue payment bonds for Inter-Connection; and (3) relating to construction projects for which plaintiffs cannot show they provided labor for Inter-Connection. In further seeking the division of the purported class of plaintiffs into project based subclasses pursuant to CPLR 906(2), the Sureties contend that such relief is warranted because the prevailing rate of wages varies from project to project, plaintiffs worked on different projects, and the sureties' liability to plaintiffs, if any, must be decided on a project-by-project, bond-by-bond basis.
The Sureties allege that neither RLI nor FNIC issued payment bonds in connection with the CCNY or NYCTA projects.
The Sureties also join in the Prime Contractor defendants' cross motion seeking dismissal of the second amended complaint.
In reply, plaintiffs (1) maintain that additional discovery is required with regard to the Luna Park Houses project, an allegedly private construction, to determine whether payment of wages at the prevailing rate was nevertheless required; (2) withdraw their claims asserted under the Fair Labor Standards Act, 29 USC. § 216 (b); (3) in support of their claim that they fulfill the numerosity requirement, cite certain as-yet unproduced certified payroll records purportedly obtained from the School Construction Authority and Dormitory Authority of the State of New York to justify their contention that some 97 different workers performed labor on behalf of Inter-Connection on three of the projects, and assert that they could demonstrate that the class size will exceed 115-150 workers if they are permitted access to records for the remaining projects; (4) contend that the releases that were obtained in return for settlement of the 31 individual claims are a sham and unenforceable as against public policy and that said individuals were not adequately represented by counsel; and (5) as to the Sureties, they (a) acknowledge that since the Sureties issued no bonds in connection with the NYC Transit "G" Line Renovation and the City College of New York projects, they have no claim against the Sureties with respect thereto, and (b) assert that it is premature to grant summary judgment to the Sureties, since claims against them are limited to work actually performed by plaintiffs and putative class members on the bonded projects, and that discovery is necessary to determine where, when, and for how long each plaintiff worked.
DISCUSSION
Class certification
Pursuant to CPLR 901(a), a party seeking class action certification must establish the existence of the following five prerequisites: ". . . 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 interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
In addition, CPLR 902 lists certain factors that the court must consider in determining whether a particular action may proceed as a class action. These factors include: "1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;" "2. The impracticability or inefficiency 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; [and,] "5. The difficulties likely to be encountered in the management of a class action." The list of factors established by CPLR 902 is not exhaustive; rather, a "court may also consider the merits of the action itself to the extent necessary for the elimination, as early as possible, of spurious actions" ( see Hoerger v. Bd. of Educ. of the Great Neck Union Free School Dist., 98 AD2d 274, 278). Moreover, "[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 Corp., 78 AD2d 83, 91).
Plaintiffs/movants bear the burden of establishing compliance with the requirements of both CPLR 901 and CPLR 902 and the determination as to whether to certify a class is ultimately vested within the sound discretion of the trial court ( see Liechtung v. Tower Air, Inc., 269 AD2d 363, 364; Ackerman v. Price-Waterhouse, 252 AD2d 179; Lauer v. New York Tel. Co., 231 AD2d 126, 130). The plaintiffs' failure to make a showing of any of the requisite elements for class certification will result in the denial of the motion for certification ( see Reiken v. Nationwide Leisure Corp., 75 AD2d 551, lv dismissed 50 NY2d 1059; see also Ackerman, 252 AD2d at 179; Small v. Lorillard Tobacco Co., Inc., 252 AD2d 1). Accordingly, although New York's class action statute is to be liberally construed and read to favor the maintenance of class actions ( see Englade v. Harper Collins Publishers, Inc., 289 AD2d 159), a court cannot grant class action certification where it is unwarranted on the law and facts of the case ( see Evans v. City of Johnstown, 97 AD2d 1, 2). In making class action certification determinations, "the Appellate Division, Second Department, has stressed the commonality, predominance and superiority criteria of CPLR 901" (Geiger v. American Tobacco Co., 181 Misc 2d 875, affd 277 AD2d 420). However, "[a] motion for class certification which is predicated on general, conclusory allegations should be denied." ( Dupack v. Nationwide Leisure Corp., 70 AD2d 568, 569). With regard to the numerosity requirement, the Appellate Division, Second Department, in Friar ( 78 AD2d at 96), stated: "There is no "mechanical test" to determine whether the first requirement — numerosity — has been met ( Kelley v. Norfolk Western Ry. Co., 4 Cir., 584 F2d 34, 35), nor is there a set rule for the number of prospective class members which must exist before a class is certified ( Cypress v. Newport News Gen. Nonsectarian Hosp. Assn., 4 Cir., 375 F2d 648). Each case depends upon the particular circumstances surrounding the proposed class (Chmieleski v. City Prods. Corp., D.C., 71 FRD 118) and the court should consider the reasonable inferences and common sense assumptions from the facts before it ( Gay v. Waiters Dairy Lunchmen's Union, 9 Cir., 549 F2d 1330; Brady v. LAC, Inc., 72 FRD. 22; Hawk Inds. v. Bausch Lomb, D.C., 59 FRD 619; see, also, Westcott v. Califano, D.C., 460 F Supp. 737, affd. 443 US 76 ( but see Consolidated Rail Corp. v. Town of Hyde Park, 47 F3d 473, 483 ["numerosity is presumed at a level of 40 members"]).
With regard to the commonality and predominance requirements of CPLR 901, it is well settled that:
"The fundamental issue under CPLR 901 . . . is whether the proposed class action asserts a common legal grievance, i.e., whether the common issues predominate over or outweigh the subordinate issues that pertain to individual members of the class. When such predominance is established, it follows that the economies of time, effort and expense, envisioned by the class action format, may be achieved . . . the use of a predominance test was not meant to create any rigid criteria in determining whether a class action should proceed. It is rather a pragmatic, functional and ad hoc test to determine whether the proposed class members are bound together by a mutual interest in the adjudication of common questions more than they are divided by the individual members' interest in matters peculiar to them."
( Geiger, 181 Misc 2d at 883, quoting 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 901.11). "The presence of numerous individual issues [, therefore,] may overwhelm the common issues and undermine class cohesion" ( id. at 883-884 [citations omitted]). Accordingly, "the fact that wrongs were committed pursuant to a common plan or pattern does not permit invocation of the class action mechanism where the wrongs done were individual in nature or subject to individual defenses" ( Mitchell v. Barrios-Paoli, 253 AD2d 281, 291).
Given the importance of the predominance of common issues of fact and law to a determination that class action status is warranted, courts generally will find that class action certification is inappropriate where a case-by-case analysis is necessary to ascertain the viability of individual membership in the class, the nature and extent of the damages suffered by each class member and the defenses available to the defendant vis-a-vis each class member ( see e.g. Mitchell, 253 AD2d at 291 [finding that definition of class was "unworkable" and class certification was therefore inappropriate where class purportedly consisted of all welfare recipients whose work assignments exceeded their medical limitations and "determining who is a member of that class would require individualized examination of each person's medical history and the physical demands of her assigned task, which would defeat the class action's goal of saving judicial time and resources"]; Small, 252 AD2d at 6 [decertifying class of allegedly nicotine addicted smokers as requiring burdensome individualized proof of class membership]; Katz v. NVF Co., 100 AD2d 470, 473 [class certification premature where individual issues respecting the knowledge and reliance of putative class members upon the alleged misrepresentations of defendant "militat(ed) against class action treatment"]; Hoerger v. Board of Educ., 98 AD2d 274, 282 [class action certification not warranted because "it (could not) be said that common questions predominat(ed) nor (could) it be said that a class action (was) superior to other available methods of resolving the issue" where "the trial court would unavoidably be placed in the position of examining each of these 44 individual cases (of putative class members) to determine the extent to which the individuals relied — if at all — upon the alleged representations of the defendant"]; Evans, 97 AD2d at 3 [class action certification is inappropriate where "the main issues (were) whether a specific injury to property or person was caused by the sewerage plant (in question) and . . . (a finding as to the) extent of any damages require(d) individualized investigation, proof and determination" which "preclude(d) a finding of predominance of common questions of law and fact"]; Darns v. Sabol, 165 Misc 2d 77, 83 [finding that plaintiffs in a proposed class action did not satisfy the requirement of "common questions of fact" where "the relative circumstances of individuals within the proposed class (were) too diverse"]; Eisner v. City of New York, 118 Misc 2d 672, 673 [finding that "while the question of the city's negligence . . . would be common to the class, the more troublesome issues of causation and damages would still have to be adjudicated on a case-by-case basis even if class action status were granted" and, therefore, class certification was not appropriate]; Vincent Petrosino Seafood Corp. v. Consolidated Edison Co. of New York, 97 Misc 2d 110 [class certification not appropriate where it was likely that "questions of liability, proximate cause, and damages affect(ed) individual plaintiffs in different ways, which (would) result() in the action degenerating into multiple lawsuits separately tried"]).
Numerosity
An examination of plaintiffs' claims regarding the size of the putative class leads to the conclusion that such claims are spurious and based upon the surmise of plaintiffs and the non-probative argument of counsel. Accordingly, the court finds that plaintiffs have failed to meet their burden of establishing numerosity.
In support of their contention that the putative class consists of a critical mass of individuals which is sufficiently large to meet the numerosity requirement, plaintiffs, through counsel, state that "[a]though the precise number of members of the putative class is not currently known, . . . there are believed to be in excess of 80 members." At least partly contradicting this assertion, plaintiffs, in their individual affidavits, each allege that "[w]hile I cannot offer an exact number of workers who worked at [several identified] sites, I recall working with over 60 to 100 different workers conducting construction and electrical work on the Public Works Projects during my time working for Inter-Connection." In yet another non-probative assertion, plaintiffs' counsel provides what is claimed to be a list of workers on the Queens College, Appellate Division and 80 Centre Street Projects, but whose sole contents a column of names is unauthenticated and unreferenced. Finally, the court notes the assertion of Stefan Czerhoniak in his affidavit in support of plaintiffs' motion for class certification, where he states that "I estimate that [Inter-Connection] employed no less than 60 workers in the whole company . . . [and] I have since learned from my attorneys that records received from the Dormitory Authority and the City of New York show no less than 97 workers employed on three of the government projects that are the subject of this action" (emphasis provided).
In opposition, defendants, in express reliance on documents provided by plaintiffs' counsel, provide a list of all 47 workers purportedly listed on Inter-Connection's official certified payroll records and sign-in sheets commencing in mid January 2001 and ending in September 2003, when plaintiffs all terminated their employment with Inter-Connection. The hire date and release date, where applicable, of each employee, is noted therein.
Plaintiffs' counsel's unconvincing assertion, in reply, that "[b]ased on my experience in cases of this nature, it is highly probable that the total class size will exceed 115-150 workers", artificially inflates the projected size of the class, deviates substantially from the plaintiffs' own representations, and offers no reliable indication of the true size of the putative class. Indeed, the low end of plaintiffs' own estimate of the number of workers involved more closely corresponds with Skowronski's allegation than does that of plaintiffs' counsel, and provides support for defendants' assertion that the number of workers falls far short of that which would justify class certification.
In further challenging numerosity, defendants identify the group of 31 individuals who accepted settlements from defendants and signed releases wherein they agreed to waive their right to litigate their claims. The circumstances surrounding the execution of those documents are sharply disputed by the parties. In seeking their inclusion in the class, the focus of plaintiffs' challenge to the legitimacy of the settlement process and the execution of the allegedly-coerced releases, is the role of attorney B. Tomasz Maj. Although there is no disagreement as to the fact that he overtly represented the workers in negotiating their settlements with the defendants, plaintiffs claim, in substance, that Maj was in fact representing the interests of the defendants who retained him rather than the workers, while defendants (and, according to his own affidavit, Maj himself), assert that he had, in the past, handled immigration-related matters for Inter-Connection's employees, and, in connection with the settlement negotiations, that he rendered legal services and advice, on a personal level, to each employee who sought it, and that his loyalties remained undivided at all times.
Plaintiffs' challenge to the validity of the releases for the purpose of qualifying the workers who executed them as members of the class herein, is ineffectual. Significantly, the agreements (which state that they were translated in Polish to the respective signatory) are clear and unambiguous on their face, and indeed, the record fails to reveal any challenge to the settlement and release documents based upon any claim of ambiguity. Accordingly, since "[i]t is well settled that releases are contracts that, unless their language is ambiguous, must be interpreted to give effect to the intent of the parties as indicated by the language employed [and] . . . that releases bar suits on causes of action arising on or prior to the date of their execution. . . ." ( Rubycz-Boyar v. Mondragon, 15 AD3d 811), plaintiffs are foreclosed from challenging the validity of the agreements on grounds that would require reference to extrinsic evidence ( see Loitta v. Real Seal Constr., Inc., 203 AD2d 786, 788). Thus, there is no legal basis upon which the releases should be set aside for any purpose herein ( see Ellis v. Village of Scotia, 17 AD3d 971).
Moreover, plaintiffs' right to recovery, as individuals and regardless of any class designation, remains unimpaired by the settlements that were executed by their co-workers. They therefore lack standing to challenge the releases, either by demonstrating that they have suffered any harm as a result of the execution of the agreements, or as third-party beneficiaries thereof ( see Decolator, Cohen DiPrisco, LLP. v. Lysaght, Lysaght Kramer, P.C., 304 AD2d 86; see also P.A. Building Co. v. City of New York, 217 AD2d 417). As none of the 31 individuals who settled with defendants have challenged the terms of the settlement within the context of this lawsuit, there is no basis for permitting plaintiffs to advance a concern which the 31 workers themselves have shown no interest in pursuing.
It is unnecessary for the court, given the apparent remaining numbers, to consider the defendants' claims as to the remaining prospective members of the putative class. "While there are exceptions, numbers under twenty-one have generally been held to be too few [to sustain the numerosity requirement] (3 Weinstein-Korn-Miller NY Civ Prac ¶ 901.09, citing Ashe, The Class Action: Solution for the Seventies, 7 New Eng. L. Rev. 1, 7-8 [Fall, 1971]; see also Klakis v. Nationwide Leisure Corp., 73 AD2d 521, 522 [where denial of class action status was affirmed based upon a finding that there were only 21 individuals who had not yet settled their claims]), and plaintiffs have not demonstrated that joinder of all members would be impracticable, in the absence of class certification (3 Weinstein-Korn-Miller NY Civ Prac ¶ 901.09).
As contended by defendants, six of the remaining employees have settlements pending, three worked on projects which are excluded from this action by federal or state preemption laws, and one has no right to sue.
Moreover, in addition to failing to demonstrate numerosity, plaintiffs' assertions, under CPLR 901(a) (5), that a class action is superior to other available means, is conclusory and self-contradicting ("[p]laintiffs allege that . . . defendants caused more than 50 workers to suffer, in the aggregate, in excess of $6,000,000 in damages. Given the expense of litigation and the relatively small size of the numerous individual claims, however, many workers would be unable to pursue redress for their claims absent certification" [emphasis provided]).
Accordingly, while plaintiffs have demonstrated: (1) that all proposed class members worked on the same set of projects for the same employer and that there are common questions of law and/or fact that predominate over questions affecting only individuals (CPLR 901[a][2]; see Pruitt v. Rockefeller Ctr. Props., 167 AD2d 14, 22); (2) that the named plaintiffs' claims are "typical" of the proposed class in that said claims "derive from the same practice or conduct that gave rise to the remaining claims of the class members and is based on the same legal theory" ( Friar, 78 AD2d at 99; see also Super Glue, 132 AD2d at 604 ["(w)ith respect to the requirement of typicality it is not necessary that the claims of the named plaintiff be identical to those of the class]); and (3) adequacy of representation of the class by plaintiffs and counsel (CPLR 901[a][4]; see Pesantez, 251 AD2d at 12), they fail to establish that joinder of 16 individuals who state damages in the aggregate sum of six million dollars, is impracticable. Accordingly, the court, pursuant to its finding that class certification is unwarranted, denies plaintiffs' motion and grants those branches of defendants' cross motion seeking denial of same.
Since, as previously stated, the named plaintiffs may continue to pursue their individual claims, the caption is deemed amended accordingly.
Defendants' cross motions
Both the Prime Contractor defendants and the Sureties cross-move, pursuant to CPLR 3212, for partial summary judgment dismissing Counts 12 and 13 of the Second Amended Complaint, since they concern federally-funded public works construction projects and, as a result, any prevailing wage claims are preempted by federal law, specifically, the Davis-Bacon Act, 40 U.S.C. 3141 et seq. Plaintiffs, who do not dispute the assertion that the identified projects were federally-funded, challenge the legal underpinnings of the cases cited by defendants in support of their cross motion.
The Davis-Bacon Act requires payment of certain wages and benefits for laborers and mechanics performing work on federal construction projects, and applies to contracts with municipal agencies where the construction projects in issue are federally funded ( see Building and Construction Trades Department, AFL-CIO v. United States Department of Labor, 932 F2d 985 [D.C. Cir. 1991], citing 74 Cong. Rec. 6510 [1931] [statement by Rep. Bacon] and Universities Research Ass'n, Inc. v. Coutu, 450 US 754, 773-74).
Defendants have demonstrated their entitlement to summary judgment on their claim of federal preemption concerning the relevant projects. Plaintiffs' opposition to this branch of defendants' cross motion is unconvincing. It is clear that no private right of action exists to enforce contracts requiring payment of federal Davis-Bacon Act prevailing wages ( see Gonzalez v. DS Zaffuto Joint Venture, 271 AD2d 356; Grochowski v. Ajet Constr. Corp., 1999 WL 688450 [US Dist Ct, SD NY, Buchwald, Maj.]; Majstrovic v. R. Maric Piping, Inc., 171 Misc 2d 429). Plaintiffs' assertion that these cases were decided on an inadequate legal record and hence constitute unreliable authority, is conclusory and unsupported.
Indeed, the instant factual setting is virtually indistinguishable from that set forth in Majstrovic, (Supra) wherein the court held, inter alia, that the plaintiffs' state law claims were preempted since the subject construction projects were entirely funded with federal monies. In Majstrovic, (Supra) the plaintiffs worked as steamfitters on public works construction projects entered into between their employer and the New York City Housing Authority. Each of those contracts (with one exception) was federally funded and U.S. Department of Labor Wage Schedules were made a part of each contract. The plaintiffs alleged that their employer had failed to pay prevailing wages and supplemental benefits under New York Labor Law § 220 and sought recovery therefore. The Majstrovic court, after reviewing the legislative and judicial history of the Davis-Bacon Act, reached the conclusion that for the purposes of Federally-funded housing projects, the Davis-Bacon Act preempts state prevailing wage rate schedules ( 171 Misc 2d at 432), and that "the great weight of authority indicates that the . . . Act did not confer rights directly on employees (citations omitted) . . . [and as a consequence] a private action may not be maintained." ( 171 Misc 2d at 433-434). In so holding, the Majstrovic court distinguished the Court of Appeals' holding in Matter of Tap Electrical Contracting Service, Inc. v. Hartnett ( 76 NY2d 164) (a case relied upon by plaintiffs herein), observing that Tap did not deal with the issue of wages, and expressly held that under the facts therein, the subsection of New York's Labor Law at issue "did not interfere with . . . the Davis-Bacon Act . . . because it does not purport to raise the minimum wage paid to Federal trainees" ( Tap, 76 NY2d at 170). Accordingly, the court grants summary judgment dismissing causes of action with respect to said federally-funded projects (see fn 5).
In view of said findings, it is unnecessary for the court to address that branch of the Sureties' cross motion where partial summary judgment is sought based upon their contention that plaintiffs provided no labor to Inter-Connection on the Castle Hill Houses or the 1010 East 178th Street projects. However, since an examination of the affidavits of the named plaintiffs and putative class members fails to reveal that any such individuals worked on the New Cambria Heights Library project, that portion of the Sureties' cross motion for summary judgment dismissing plaintiffs' claims in connection with said project is granted.
In opposition to that branch of defendants' cross motion seeking dismissal of causes of action in the Second Amended Complaint with regard to claims concerning the Luna Park Houses, plaintiffs assert that additional discovery is necessary to ascertain whether said project was privately funded. Such grounds are insufficient to defeat summary judgment. The mere hope that plaintiffs will uncover evidence that will establish the existence of an issue of fact to defeat defendants' assertions that the Luna Park Houses project contract was privately funded and therefore not subject to the payment of prevailing wages and benefits, provides no basis for postponing a decision on a summary judgment motion (CPLR 3212(f); see Kennerly v. Campell Chain Co., 133 AD2d 669; Gateway State Bank v. Shangri-La Private Club for Women, 113 AD2d 791, affd 67 NY2d 627).
Finally, the court denies that branch of defendants' cross motion seeking attorney's fees. Under the general rule, attorney's fees and disbursements are incidents of litigation and the prevailing party may not collect them from his or her adversary unless an award is authorized by agreement between the parties or by statute or court rule ( see A.G. Ship Maintenance Corp. v. Lezak, 69 NY2d 1, 5; Mighty Midgets v. Centennial Ins. Co., 47 NY2d 12, 21-22; City of Buffalo v. Clement Co., 28 NY2d 241, 262-263). Defendants, having failed to set forth any such statute or agreement, are thus not entitled to receive an award of attorneys' fees.
The foregoing constitutes the decision and order of the court.