CPLR § 901 Prerequisites to a class action
Kudinov v Kel-Tech Constr. Inc., 2009 NY Slip Op 06292 (App. Div., 1st, 2009)
The party seeking class certification bears the burden of establishing the criteria prescribed in CPLR 901(a) (CLC/CFI Liquidating Trust v Bloomingdale's, Inc., 50 AD3d 446, 447 [2008]). This burden must be met by providing 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], lv dismissed 99 NY2d 576 [2003], cert den 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 of the trial court. In exercising this
discretion, a court must be mindful of our holding that the class
certification statute should be liberally construed (Englade v HarperCollins Publs., 289 AD2d 159 [2001]).
[*2]Here, the evidence is
sufficient to establish numerosity, without determining the precise
number, given the number of projects, the certified payroll records and
the testimony and affidavits regarding the number of workers
potentially affected by the allegations (see, Globe Surgical Supply v Gieco 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 has not been determined, and that some members of the
putative class have submitted affidavits affirmatively stating that
they were not aggrieved by the allegations against defendants, the
number of workers alleged to have been underpaid was high enough to
justify the court's exercise of its discretion in certifying the class.
This is particularly true in light of the fact that many workers were
not members of any union, and were of different trades than that of the
main plaintiff.
Moreover, the commonality of claims predominates, given the
same types of subterfuges allegedly employed to pay lower wages. The
fact that different trades are paid on a different wage scale and thus
have different levels of damages does not defeat certification (see Englade, at
160). The ability to resolve such inquiries by referring to payroll and
other documentary evidence distinguishes this case from those in which
individualized inquiries defeat commonality (see e.g. Batas v Prudential Ins. Co., 37 AD3d 320, 322 [2007]; Gaidon v Guardian Life Ins. Co. Of Am., 2 AD3d 130 [2003]).While it is appropriate in determining whether an action should
proceed as a class action to consider 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 substitute for summary judgment or trial.NARDELLI, J. (dissenting in part)
…
Three projects at issue on this appeal were bonded by Fidelity and
Deposit Company of Maryland. The class representative certified by the
court on those projects was Alexander Kudinov, a union carpenter. He
testified that aside from himself, five or six carpenters worked at
P.S. 104, one worked at P.S. 114, and four or five worked at P.S. 198.
Of this maximum total of 13 carpenters, 3 of them submitted affidavits
stating, "I have always been paid the wages due, and all of my benefits
have been paid to my union." Thus, at best, there are 10 carpenters in
the aggregate on these three projects who have wage grievances. I
respectfully submit that 10 does not meet the numerosity requirement
required by the statute. Furthermore, when the projects are viewed on
an individual basis, at best there are five other similarly situated
carpenters on some of the projects, and as few as one other on the P.S.
114 project. I see no reason why resort to class action status is
required to resolve any of the grievances that Kudinov or other
carpenters may have regarding their wages on these particular projects.…
Under such circumstances, where the number of people in the class is
not identified, where members of the putative class have sworn that
they do not have any grievances, and where the nature of the claims
requires evidence on an individual basis, it is difficult to discern
how a class action is a superior, or even an appropriate, vehicle for
resolution of the claims.
The bold is mine.
Looks like the controlling factor here is that there are no union workers.
bruteforcelawyer.com 