| Kudinov v Kel-Tech Constr. Inc. |
| 2009 NY Slip Op 06292 [65 AD3d 481] |
| August 25, 2009 |
| Appellate Division, First Department |
| Alexander Kudinov et al., Respondents, v Kel-TechConstruction Inc. et al., Appellants, et al., Defendants. |
—[*1] Feinstein & Nisnewitz, P.C., Bayside (Craig Nisnewitz of counsel), for Ianelli ConstructionCo., Inc., appellant. Wolff & Samson P.C., New York (Jonathan Bondy of counsel), for Seaboard Surety Co., St.Paul Fire and Marine Ins. Co. and United States Fidelity and Guaranty Company, appellants. Torre, Lentz, Gamell, Gary & Rittmaster, LLP, Jericho (Mark S. Gamell of counsel), forFidelity and Deposit Company of Maryland, appellant. Virginia & Ambinder LLP, New York (LaDonna M. Lusher of counsel), forrespondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 26,2007, which, to the extent appealed from as limited by the briefs, inter alia, partially grantedplaintiffs' motion for class certification, designated Alexander Kudinov as a class representativeand denied defendant Fidelity and Deposit's cross motion for summary judgment, affirmed,without costs.
The party seeking class certification bears the burden of establishing the criteria prescribedin CPLR 901 (a) (CLC/CFI LiquidatingTrust v Bloomingdale's, Inc., 50 AD3d 446, 447 [2008]). This burden must be met byproviding an evidentiary basis for class certification (Matros Automated Elec. Const. Corp. v Libman, 37 AD3d 313[2007]; Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 [2002], lvdismissed 99 NY2d 576 [2003], cert denied sub nom. Moore v American Tr. Ins.Co., 538 US 987 [2003]).
Whether a particular lawsuit qualifies as a class action rests within the sound discretion ofthe trial court. In exercising this discretion, a court must be mindful of our holding that the classcertification statute should be liberally construed (Englade v HarperCollins Publs., 289AD2d 159 [2001]).[*2]
Here, the evidence is sufficient to establish numerosity,without determining the precise number, given the number of projects, the certified payrollrecords and the testimony and affidavits regarding the number of workers potentially affected bythe allegations (see Globe SurgicalSupply v GEICO Ins. Co., 59 AD3d 129 [2008]; Pesantez v Boyle Envtl.Servs., 251 AD2d 11 [1998]). While it is true that the exact number of the putative class hasnot been determined, and that some members of the putative class have submitted affidavitsaffirmatively stating that they were not aggrieved by the allegations against defendants, thenumber of workers alleged to have been underpaid was high enough to justify the court'sexercise of its discretion in certifying the class. This is particularly true in light of the fact thatmany workers were not members of any union, and were of different trades than that of the mainplaintiff.
Moreover, the commonality of claims predominates, given the same types of subterfugesallegedly employed to pay lower wages. The fact that different trades are paid on a differentwage scale and thus have different levels of damages does not defeat certification (seeEnglade at 160). The ability to resolve such inquiries by referring to payroll and otherdocumentary evidence distinguishes this case from those in which individualized inquiries defeatcommonality (see e.g. Batas vPrudential Ins. Co. of Am., 37 AD3d 320, 322 [2007]; Gaidon v Guardian Life Ins. Co. ofAm., 2 AD3d 130 [2003]).
While it is appropriate in determining whether an action should proceed as a class action toconsider whether a claim has merit, this "inquiry is limited" (see Bloom v Cunard Line,76 AD2d 237, 240 [1980]), and such threshold determination is not intended to be a substitutefor summary judgment or trial.
While Kudinov's testimony and his affidavit as to his record keeping and the number ofemployees at the projects where he worked contained inconsistencies, his claim has sufficientmerit for the limited purposes of determining whether to certify this class. Those inconsistenciespresent, as the court correctly determined, issues for resolution by the trier of fact.
We have considered defendants' other contentions and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Freedman and Richter, JJ.
Nardelli, J., dissents in part in a memorandum as follows: Although I agree with the majoritythat the court properly denied summary judgment dismissing the claims on the projects whichFidelity and Deposit Company of Maryland bonded, I dissent to the extent the majority affirmsthe grant of class certification on any of the projects at issue. Accordingly, I would modify tovacate those portions of the order which granted such status.
CPLR 901 (a) permits a court to authorize a class action if the class is so numerous thatjoinder of all members is impracticable, there are questions of law or fact common to the classthat predominate over any questions affecting only individual members, the claims or defensesof the class representative are typical of the class, the representatives will fairly and adequatelyprotect the interest of the class, and the class action is superior to other available methods for the[*3]fair and efficient adjudication of the controversy.
The party seeking class certification bears the burden of establishing the criteria prescribedin the statute (CLC/CFI LiquidatingTrust v Bloomingdale's, Inc., 50 AD3d 446, 447 [2008]). This burden must be met byproviding an evidentiary basis for class action certification (Matros Automated Elec. Const. Corp. v Libman, 37 AD3d 313[2007]; Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 [2002], lv dismissed99 NY2d 576 [2003], cert denied sub nom. Moore v American Tr. Ins. Co., 538 US987 [2003]).
Three projects at issue on this appeal were bonded by Fidelity and Deposit Company ofMaryland. The class representative certified by the court on those projects was AlexanderKudinov, a union carpenter. He testified that aside from himself, five or six carpenters worked atP.S. 104, one worked at P.S. 114, and four or five worked at P.S. 198. Of this maximum total of13 carpenters, three of them submitted affidavits stating, "I have always been paid the wagesdue, and all of my benefits have been paid to my union." Thus, at best, there are 10 carpenters inthe aggregate on these three projects who have wage grievances. I respectfully submit that 10does not meet the numerosity requirement required by the statute. Furthermore, when theprojects are viewed on an individual basis, at best there are five other similarly situatedcarpenters on some of the projects, and as few as one other on the P.S. 114 project. I see noreason why resort to class action status is required to resolve any of the grievances that Kudinovor other carpenters may have regarding their wages on these particular projects.
Likewise, with regard to the larger number of projects bonded by the other insurers,defendants St. Paul Fire and Marine Insurance Co., Seaboard Surety Co., and United StatesFidelity and Guaranty Co., there are significant issues which militate against the grant of classaction status. To begin, nine additional carpenters submitted affidavits similar to those submittedby the individuals in the three projects discussed above. They confirm that they do not have anycontractual dispute with defendant Kel-Tech. Thus, there are at least 12 members of the putativeclass, the number of which has not even been established, who aver that they are not aggrieved.Aside from casting doubt that plaintiffs are meeting the numerosity requirements of the statute,these affidavits also strongly suggest that plaintiffs cannot show that there are common questionsof law or fact which predominate over the claims of individual members. Indeed, the opposite isindicated—i.e., that plaintiffs' claims are specific to them.
Moreover, the nature of some of the claims, e.g., circumvention of contractual obligations bycash payments, forged names on sign-out logs, and payments of expenses in lieu of overtime,will require evidence on a case-by-case basis, especially since at least 12 carpenters on theprojects have sworn that they are not aggrieved in any manner. Certainly, proof that any onecarpenter received a cash payment is not proof that all the others did.
Furthermore, there is no evidence that numerosity has been established. As the majorityacknowledges, the exact number of members of the putative class has not been established.Moreover, at least 12 members of the putative class, whatever its number may be, have swornthat they do not have grievances. It is just as likely, on the record before us, that the purportedclass consists of nothing more than the named plaintiffs, as it is that there are many workers whowere underpaid. Plaintiffs have not come close to meeting their burden of establishingnumerosity.
In Englade v HarperCollins Publs. (289 AD2d 159 [2001]), upon which the majorityrelies, this Court specifically stated, "[I]t is uncontested that the class is so numerous [*4]that joinder is impracticable" (id. at 160). In contrast, inthis case, there is no such concession about numerosity, and the paucity of plaintiffs' showingstrongly suggests that the potential class is very small, if not infinitesimal, and, whatevercomplaints plaintiffs may have are highly individualized.
Under such circumstances, where the number of people in the class is not identified, wheremembers of the putative class have sworn that they do not have any grievances, and where thenature of the claims requires evidence on an individual basis, it is difficult to discern how a classaction is a superior, or even an appropriate, vehicle for resolution of the claims. [See2007 NY Slip Op 32495(U).]