| Galdamez v Biordi Constr. Corp. |
| 2008 NY Slip Op 03104 [50 AD3d 357] |
| April 8, 2008 |
| Appellate Division, First Department |
| Oscar Galdamez et al., Respondents, v Biordi ConstructionCorp. et al., Appellants, et al., Defendants. |
—[*1] Barnes, Iaccarino, Virginia, Ambinder & Shepherd, PLLC, New York (James EmmetMurphy of counsel), for respondents.
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 ofwages and supplemental benefits pursuant to Labor Law § 220, and for leave to prosecutethe action on behalf of the class, unanimously affirmed, without costs.
The court did not improvidently exercise its discretion in holding that plaintiffs met theirburden 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 allmembers 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 properlyconsidered affidavits from several members of the proposed class submitted on reply since theaffidavits 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 classcertification was untimely, the court providently exercised its discretion in deeming it timelysince the delay in moving was largely the result of defendants' conduct during discovery (seeCaesar v Chemical Bank, 118 Misc 2d 118, 121 [1983], affd 106 AD2d 353 [1984],mod on other grounds 66 NY2d 698 [1985]).[*2]
We have considered defendants' remaining contentionsand find them unavailing. Concur—Tom, J.P., Saxe, Nardelli and Williams, JJ.[See 13 Misc 3d 1224(A), 2006 NY Slip Op 51969(U).]