| Dabrowski v Abax Inc. |
| 2011 NY Slip Op 04303 [84 AD3d 633] |
| May 24, 2011 |
| Appellate Division, First Department |
| Jerzy Dabrowski et al., Respondents, v Abax Incorporatedet al., Appellants, et al., Defendants. |
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Order, Supreme Court, New York County (Judith J. Gische, J.), entered July 27, 2010,which, to the extent appealed from, granted plaintiffs' (laborers on specified public workscontracts) motion for class certification, denied defendants Abax Incorporated's, John Bleckman'sand Edward Monaco's motion to compel discovery, and granted plaintiffs' cross motion for aprotective order as to the discovery sought by defendants, unanimously affirmed, without costs.
Plaintiffs' evidence in support of class certification (see generally CPLR 901),including both the affidavits and paycheck stubs, demonstrated merit to plaintiffs' claims thatthey, and other similarly-situated laborers employed by the corporate defendant (Abax), mayhave been subject to a practice by Abax to underpay on wages, overtime and benefits duringemployment on public works contracts (see generally Kudinov v Kel-Tech Constr. Inc., 65 AD3d 481[2009]). Abax's argument that there was insufficient evidence that laborers other than the namedplaintiffs (and three other identified employees) had been "aggrieved" by alleged improper paypractices, thus precluding a finding of requisite numerosity, is unavailing given the affidavitsproffered by six laborers who attested, inter alia, that in the relevant years 2001 through 2007,they worked with between 50 and 100 laborers, and that Abax engaged in a regular practice ofnot paying the prevailing wages and attendant benefits (see generally Kudinov, 65 AD3dat 481-482; Pesantez v Boyle Envtl. Servs., 251 AD2d 11 [1998]). The commonality ofthe putative class's wage/benefits claims, and their typicality (see CPLR 901),predominate over any alleged individualized claims.
The evidence indicates that Abax regularly presented the plaintiffs with paychecks that didnot set forth the hours worked, the rate of pay, or the benefits accrued. It is also alleged that Abaxdid not post the prevailing wages, as required by law, at any of the project sites at which [*2]plaintiffs worked. While Abax argues that too many variablesexisted among the putative class of laborers to group them in a single action, including theirvarying job titles, pay rates, and the differing project sites and contracts involved, we find that thelaborers' pay claims were not complex, and that the pay scales, hours worked and other relevantcontract information would typically be well-documented for the public works projects at issue(see generally Kudinov, 65 AD3d at 482). Abax's argument that the class, as defined, isoverbroad as it would potentially include public works projects on which none of the plaintiffsworked during the years 2001 through 2007, is unavailing. The wage, overtime and benefitsclaims associated with public works projects, as asserted herein, should be readily identifiable, ifthey exist, and well-documented.
The motion court correctly determined that the plaintiffs are adequate representatives for theputative class, as they have thus far engaged in a contentious and litigious prosecution of theinstant matter. Plaintiffs' counsel has demonstrated its expertise and zealous representation of theplaintiffs here, as well as in prior class action cases which have reached this court on appeal(see Kudinov, 65 AD3d 481; Nawrocki v Proto Constr. & Dev. Corp., 82 AD3d 534 [2011]).There is no evidence that plaintiffs lack the financial means to prosecute this case, or that theplaintiffs may have conflicts with other putative class members (see generally Ackerman vPrice Waterhouse, 252 AD2d 179, 201-202 [1998]).
Abax's argument that it was denied due process when the court denied its motion to compelcompletion of discovery on precertification issues is unavailing. Not only had Abax engaged in astonewalling of discovery sought by plaintiffs, its discovery requests had predominantly soughtpersonal information from the immigrant plaintiffs for the apparent purpose to discourageprosecution of this action. In any event, Abax's hopes of gleaning information that wouldquestion plaintiffs' financial capability to prosecute this action, and/or to show that plaintiffs'interests conflicted with those of the putative class, are not a sound basis for overturning thecourt's discretionary decision not to compel further discovery on the class certification issue.
Finally, the proposed class action is superior to the prosecution of individualized claims in anadministrative proceeding in view of the difference in litigation costs, the laborers' likelyinsubstantial means, and the modest damages to be recovered by each individual laborer, ifanything (see generally Nawrocki, 82 AD3d at 536; Pesantez, 251 AD2d at 12).
We have considered defendants' remaining arguments and find them unpreserved and/orunavailing. Concur—Tom, J.P., Saxe, Moskowitz, Acosta and Abdus-Salaam, JJ.[Prior Case History: 2010 NY Slip Op 31981(U).]