| Nawrocki v Proto Constr. & Dev. Corp. |
| 2011 NY Slip Op 01895 [82 AD3d 534] |
| March 15, 2011 |
| Appellate Division, First Department |
| Stanislaw Nawrocki et al., Respondents, v ProtoConstruction & Dev. Corp. et al., Appellants, et al., Defendants. |
—[*1] Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), forrespondents.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered April 13, 2010,which, in this prevailing wage case, granted plaintiffs' motion, pursuant to CPLR 901 and 902, tocertify the instant litigation as a class action, to the extent of all individuals employed bydefendants between the years 2001 and 2007 who performed work upon the Public WorksProjects, as such term is defined in the complaint, and excluding any of defendants' employeeswho were engaged as clerical, administrative, professional, or supervisory workers who did notperform manual labor, unanimously affirmed, without costs.
Plaintiffs meet the requirements of CPLR 901 (a) (4) to fairly and adequately protect theinterests of the class. The record reveals no conflict of interest between the class members andthe class representatives. Indeed, plaintiffs seek the same relief as the class members—toreceive the wages and benefits allegedly owed to them under public works contracts. The factthat plaintiffs only worked for defendants until 2004 does not preclude them from serving as theproposed class representatives of those employees who were employed by defendants in 2007,because defendants have not disputed that the commonality requirement of CPLR 901 (a) (2) andthe typicality requirement of CPLR 901 (a) (3) have been met (see Iglesias-Mendoza v LaBelle Farm, Inc., 239 FRD 363, 370-371 [SD NY 2007]).
It is the function of the class action representative to act as a check on the attorneys in orderto provide an additional assurance that in any settlement or other disposition the interests of themembers of the class will take precedence over those of the attorneys (see Tanzer vTurbodyne Corp., 68 AD2d 614, 620-621 [1979]). However, rigid application of thisrequirement is inappropriate where, as here, the class is comprised of laborers. Indeed, "[s]uchinflexibility runs counter to a principal objective of the class action mechanism—tofacilitate recovery for those least able to pursue an individual action" (Noble v 93 Univ. PlaceCorp., 224 FRD 330, 344 [SD NY 2004]). Although defendants allude to the proposed classrepresentatives needing translation of their affidavits from English to Polish, a tenuous grasp ofthe English language is insufficient to render a putative class representative inadequate (seee.g. In re Crazy [*2]Eddie Sec. Litig., 135 FRD 39, 41 [EDNY 1991]).
In addition, it is irrelevant that plaintiffs were employed by defendants as bricklayers yet seekto represent all the trades that were present at the public works construction sites. Indeed, "[t]hefact that different trades are paid on a different wage scale and thus have different levels ofdamages does not defeat certification" (Kudinov v Kel-Tech Constr. Inc., 65 AD3d 481, 482 [2009]).
As an initial matter, defendants failed to argue before the motion court that plaintiffs couldnot meet the superiority requirement of CPLR 901 (a) (5), because they did not exhaust theiradministrative remedies under the Labor Law. Therefore, this argument is unpreserved forappellate review (see Matter of Rucker vNYC/NYPD License Div., 78 AD3d 535 [2010]). In any event, that plaintiffs did notexhaust their administrative remedies is again irrelevant, because "the Labor Law is not theexclusive remedy to recover prevailing wages" (De La Cruz v Caddell Dry Dock & Repair Co., Inc., 22 AD3d 404,405 [2005]). Instead, a "plaintiff class can proceed on . . . common-law breach ofcontract claims for underpayment of wages and benefits" (Pesantez v Boyle Envtl. Servs.,251 AD2d 11, 12 [1998]). Here, the complaint's first cause of action asserts a claim for breach ofthe public works contracts. Thus, defendants' assertion, that because they failed to exhaust theiradministrative remedies under the Labor Law, plaintiffs failed to show that certification as a classaction was superior to individualized causes of action, is without merit. Rather, since thedamages allegedly suffered by an individual class member are likely to be insignificant, and thecosts of prosecuting individual actions would result in the class members having no realistic dayin court, we find that a class action is the superior vehicle for resolving this wage dispute (seeWeinberg v Hertz Corp., 116 AD2d 1, 7 [1986], affd 69 NY2d 979 [1987]).
We have reviewed defendants' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Abdus-Salaam, JJ. [PriorCase History: 27 Misc 3d 1211(A), 2010 NY Slip Op 50676(U).]