Appellate Division

Stipulations, Orders, and Defaults: CPLR R. 5015; CPLR § 2005; CPLR R. 3216; CPLR § 2004

CPLR R. 5015 Relief from judgment or order

CPLR § 2005 Excusable delay or default

Davidson v Valentin, 2009 NY Slip Op 06500 (App. Div., 2nd, 2009)

On October 26, 2007, a stipulation was "so-ordered," in which the
parties consented to the entry of a judgment in favor of the plaintiffs
on their first cause of action, inter alia, to direct the defendants to
repair or replace a retaining wall on the defendants' property in
compliance with the terms of an access agreement executed by the
parties on the same date. The stipulation provided that if the
defendants failed to comply with the terms of the judgment, the parties
would place the remaining causes of action on the trial calendar. After
the defendants failed to timely comply with the terms of the judgment,
the plaintiffs placed the remaining causes of action on the trial
calendar. Thereafter, the defendants obtained multiple adjournments of
the trial date in an effort to comply with the terms of the access
agreement. When the defendants' attorney failed to appear for trial on
the third adjourned date of January 28, 2008, the court held an inquest
on the issue of damages and entered a judgment in favor of the
plaintiffs on February 28, 2008. On April 23, 2008, the defendants
moved to vacate the judgment.

To vacate their default in appearing at the trial, the
defendants were required to demonstrate both a reasonable excuse for
the default and a meritorious defense to the action (see CPLR 5015[a][1]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747; Vasquez v New York City Hous. Auth., 51 AD3d 781, 782; Conserve Elec., Inc. v Tulger Contr. Corp., 36 AD3d 747). Although the court may, in its discretion, accept law office failure as a reasonable excuse (see CPLR 2005; Putney v Pearlman, 203 AD2d 333), "'a pattern of willful default and neglect' should not be excused" (Roussodimou v Zafiriadis, 238 AD2d 568, 569, quoting Gannon v Johnson Scale Co., 189 AD2d 1052, 1052). The statements by the defendants' attorney regarding his personal problems did [*2]not
adequately explain the defendants' failure to comply with the time and
terms of the court-ordered stipulation, judgment, and access agreement
dated October 26, 2007, and to comply with those terms during the
subsequent extensions of those deadlines, and defense counsel's failure
to appear on the adjourned trial date even though he knew his attempts
to further adjourn the trial had been unsuccessful (see Joseph v GMAC Leasing Corp., 44 AD3d 905; Wechsler v First Unum Life Ins. Co., 295 AD2d 340; Foster v Gherardi, 201 AD2d 701). Furthermore, the defendants failed to demonstrate that they have a meritorious defense (see Buchanan v Cardozo, 24 AD2d 620, 621, affd 16 NY2d 1029). Accordingly, the defendants' motion was properly denied.

The bold is mine.

CPLR R. 3216 Want of prosecution

(b) No
dismissal shall be directed under any portion of subdivision (a) of
this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been complied
with:

(3)
The court or party seeking such relief, as the case may be, shall have
served a written demand by registered or certified mail requiring the
party against whom such relief is sought to resume prosecution of the
action and to serve and file a note of issue within ninety days after
receipt of such demand, and further stating that the default by the
party upon whom such notice is served in complying with such demand
within said ninety day period will serve as a basis for a motion by the
party serving said demand for dismissal as against him for unreasonably
neglecting to proceed.

CPLR § 2004 Extensions of time generally

Davis v Cardiovascular Consultants of Long Is., P.C., 2009 NY Slip Op 06501 (App. Div., 2nd, 2009)

An order entered November 7, 2007, which warned the plaintiff that
the failure to serve and file a note of issue would result in dismissal
of the action, had the same effect as a valid 90-day notice pursuant to
CPLR 3216 (see Huger v Cushman & Wakefield, Inc., 58 AD3d 682; Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Giannoccoli v One Cent Park W. Assocs., 15 AD3d 348; Betty v City of New York, 12 AD3d 472).
Having received a 90-day notice, the plaintiff was required either to
file a timely note of issue or to move, before the default date, for an
extension of time pursuant to CPLR 2004 (see Benitez v Mutual of Am. Life Ins. Co., 24 AD3d 708; Bokhari v Home Depot U.S.A., 4 AD3d 381; McKinney v Corby, 295 AD2d 580, 581). The plaintiff did neither, and the action was subsequently dismissed pursuant to CPLR 3216.

To vacate the dismissal of an action pursuant to CPLR 3216, a
plaintiff must demonstrate both a reasonable excuse for the default in
complying with the 90-day notice and a meritorious cause of action (see CPLR 3216[e]; Felix v County of Nassau, 52 AD3d 653; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783).
Here, the plaintiff failed to submit any expert medical opinion
evidence to demonstrate the merit of his medical malpractice action (see Mosberg v Elahi, 80 NY2d 941, 942; Fiore v Galang, 64 NY2d 999, 1000-1001; Salch v Paratore, 60 NY2d 851, 852; Picot v City of New York, 50 AD3d 757; Burke v Klein, 269 AD2d 348, 348-349; Abelard [*2]v Interfaith Med. Ctr., 202 AD2d 615, 616; Feinblum v Dybner, 197
AD2d 560). Accordingly, that branch of his motion which was, in effect,
to vacate the dismissal of the action pursuant to CPLR 3216 should have
been denied.

Strange. Consider CPLR R. 3216(b)(3). Specifically, the "registered or certified" mail part.

Again, the bold is mine.

Appellate Procedure: An Incomplete Record CPLR R. 5526

CPLR R. 5526 Content and form of record on appeal

Civil v Tae Hwa Sim, 2009 NY Slip Op 06499 (App. Div., 2nd, 2009)

In an action to recover damages for personal injuries, the proposed
intervenor, Broadspire, appeals from an order of the Supreme Court,
Rockland County (Nelson, J.), dated September 15, 2008, which denied
its motion, inter alia, pursuant to CPLR 1013 for leave to intervene in
the action.

ORDERED that the appeal is dismissed, with costs.

CPLR 5526 provides that the record on appeal from an
interlocutory order shall consist of, inter alia, "the papers and other
exhibits upon which the . . . order was founded."

It is the obligation of the appellant to assemble a proper
record on appeal. An appellant's record on appeal must contain all of
the relevant papers before the Supreme Court. Appeals that are not
based upon complete and proper records must be dismissed (see Robertson v United Equities, Inc., 61 AD3d 838; Matter of Arcarian Sys. Ltd., 38 AD3d 649).
In this case, the appellant based its motion for leave to intervene in
large part on an arbitration decision which was submitted to the
Supreme Court both as an exhibit to the appellant's motion papers, and
as an exhibit to the plaintiff's papers in opposition to the motion.
However, the appellant did not include that decision in the record on
appeal. Inasmuch as the record is inadequate, we dismiss the appeal (see Matter of Arcarian Sys. Ltd., 38 AD3d at 649).

Procedure: It's a killer.

The bold is mine.

Necessary Joinder CPLR § 1001

CPLR § 1001 Necessary joinder of parties

Censi v Cove Landings, Inc., 2009 NY Slip Op 06496 (App. Div., 2nd, 2009)

Necessary parties are persons "who might be inequitably affected by a
judgment in the action" and must be made plaintiffs or defendants (see
CPLR 1001[a]). CPLR 1001(b) requires the court to order such persons
summoned, where they are subject to the court's jurisdiction. If
jurisdiction over such necessary parties can be obtained only by their
consent or appearance, the court is to determine, in accordance with
CPLR 1001(b), whether justice requires that the action proceed in their
absence (see CPLR 1001 [b]). The nonjoinder of necessary parties
may be raised at any stage of the proceedings, by any party or by the
court on its own motion, including for the first time on appeal (see City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272, 282; Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo School Dist., 48 AD3d 1103, 1103-1104; Matter of Storrs v Holcomb, 245 AD2d 943, 944 n 1; Wrobel v La Ware, 229 AD2d 861; Matter of Dreyfuss v Board of Educ. of Union Free School Dist. No. 3, Town of Huntington, 42 AD2d 845; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1003:1; see also CPLR 1003).

Here, the record indicates the possible existence of necessary parties
who have not been joined, namely, the owners of the remainder of the
roadbed of Fish Cove Road. Those parties' interests in real property
may be affected by that portion of the Supreme Court's order which,
upon searching the record, declared Fish Cove Road to be a public
highway, and effectively granted the public an easement to pass over
their lands (see Sorbello v Birchez Assocs., LLC, 61 AD3d 1225; Schaffer v Landolfo, 27 AD3d 812; Dunkin Donuts of N.Y., Inc. v Mid-Valley Oil Co., Inc., 14 AD3d 590, 592; Matter of Princess Bldg. Corp. v Zoning Bd. of Appeals of Town of Huntington, 307 AD2d 972; Hitchcock v Boyack, 256 AD2d 842, 844; Buckley v MacDonald, 231 AD2d 599, 600; Matter of Lehrer v Wallace,
24 AD2d 602, 603). Thus, the court should not have made this
determination upon searching the record without first determining
whether all necessary parties were joined. Under the circumstances of
this case, "the questions of whether there are any . . . necessary
parties who should be joined in this action and, if so, the appropriate
procedural disposition for effecting joinder should not be determined
by this [C]ourt in the first instance" (De Ruscio v Jackson, 164
AD2d 684, 688). Accordingly, we remit the matter to the Supreme Court,
Suffolk County, to hold a hearing to determine whether there are any
necessary parties who should be joined in this action and, if so, to
compel their joinder, subject to any affirmative defenses, and if
joinder cannot be effectuated, to determine, pursuant to CPLR 1001(b),
whether the action should proceed in the absence of any necessary
parties.

It's almost always a good idea to invite everyone to the party. Note that this can be brought up on appeal for the first time, so, if you aren't careful, you can lose, even when you win.

The bold is mine.

Sufficiently particular but individual issues predominate: CPLR R. 3016; CPLR § 901

CPLR R. 3016 Particularity in specific actions

CPLR § 901 Prerequisites to a class action

Dobroshi v Bank of Am., N.A., 2009 NY Slip Op 06382 (App. Div., 1st, 2009)

…

Contrary to defendant's claim, the second cause of action pleads fraud with sufficient particularity to satisfy CPLR 3016(b) (see Lanzi v Brooks,
43 NY2d 778, 780 [1977]). It informs defendant that plaintiff complains
of the significant increase in settlement costs between the Good Faith
Estimate of Settlement Services (GFE) and the HUD-1 statement, and of
the fact that she was informed about this increase only one day before
the closing.

Plaintiff's allegation that defendant deliberately underestimated
settlement costs to induce her to obtain a loan from it, rather than
from a competing lender states a claim for fraud (see Wright v Selle, 27 AD3d 1065, 1067-1068 [2006]). The GFE was not a mere statement of future intent (see Watts v Jackson Hewitt Tax Serv., Inc., 579 F Supp 2d 334, 352 [ED NY 2008]), and the issue of material misrepresentation is not subject to summary disposition (see e.g. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).

…

The motion court should have stricken the class action allegations.
First, individual issues will predominate because all claims under
General Business Law § 349 will require [*3]analysis of whether the ultimate closing costs were so unreasonable as to amount to a deceptive practice (cf. Weil v Long Island Savings Bank, FSB,
200 FRD 164, 174 [ED NY 2001] [distinguishing a case where each
plaintiff would have to provide evidence of the services performed
compared to a case where the plaintiffs claim that the alleged scheme
was illegal per se]). Moreover, plaintiff contends that defendant's bad
faith in making estimates is actionable. However, to determine if
defendant acted in bad faith, it will be necessary to individually
examine each of the tens of thousands of transactions at issue.
Finally, plaintiff's proposed class would number in the thousands and
would have individually tailored written disclosures, different types
and amounts of fees and different reasons for the increase in closing
costs. These circumstances negate the possibility that common questions
would predominate (see Rose v SLM Fin. Corp., 254 FRD 269, 272-73 [WD NC 2008]).

The bold is mine.

Experts

Bygrave v New York City Hous. Auth., 2009 NY Slip Op 06361 (App. Div., 1st, 2009)

This decision is too long to pull a cut and paste job. Long story short, defendant moved for summary judgment based on the affidavit of its expert. The expert referred to a few reports, but not all of them were attached; however this did not bother the Court. The Court rejected the testimony of the expert because it was not based upon "an individualized assessment of plaintiff's particular condition." Click on the case to read more. It's a lead paint case.

Before you go, take note:

Because defendant failed to meet its initial burden of establishing
entitlement to judgment in its favor as a matter of law, the motion
court should have denied the motion for summary [*5]judgment without even considering the sufficiency of plaintiff's opposition papers (see Winegrad, 64 NY2d at 853).

Expert testimony, even if unrebutted will not always carry the day. Although, to be clear, the Court did find that had defendant met its burden, plaintiff opposition was sufficient to raise an issue of fact.

Lately the First Department has had a dissent in almost every decision. This one was no exception.

Interpleader

CPLR § 1006 Interpleader

Navarone Prods., N.V. v HSBC Gibbs Gulf Ins. Consultants Ltd., 2009 NY Slip Op 06367 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Herman Cahn, J.), entered
June 24, 2008, that, after a nonjury trial, found Navarone Productions,
N.V. entitled to certain film distribution revenues, and order, same
court and Justice, entered December 31, 2008, that, to the extent
appealed from, as limited by the briefs, directed Sony Pictures to pay
Navarone 60% of the revenues it is holding and all future revenues from
the film, unanimously affirmed, with costs.

This interpleader action required the trial court to determine
who was entitled to receive monies that Sony holds, and will receive in
the future, representing proceeds on the distribution of a 1970's movie
entitled Force Ten from Navarone. In determining that plaintiff
Navarone Productions, N.V. was entitled to all monies and to future
distributions, the trial court based its findings on a fair
interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, [*2]495
[1992]), especially in light of appellant's scheme with the
interpleaded defendants to defraud Sony into wrongfully paying them by
failing to notify Sony that appellant had already received full payment
under a settlement agreement (see generally Pecorella v Greater Buffalo Press, Inc.,
107 AD2d 1064, 1065 [1985]). We find that the court did not err in its
evidentiary rulings and that the rulings, regardless of their validity,
would not have altered the outcome of the case (see e.g. Vertical Computer Sys., Inc. v Ross Sys., Inc., 59 AD3d 205 [2009]).

The bold is mine.

Accord and Satisfaction

CPLR R. 3211(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

Profex, Inc. v Town of Fishkill, 2009 NY Slip Op 06320 (App. Div., 2nd, 2009)

"[T]he rule of accord and satisfaction has generally been accepted as a
legitimate and expeditious means of settling contract disputes" (Horn Waterproofing Corp. v Bushwick Iron & Steel Co.,
66 NY2d 321, 325). The party asserting the affirmative defense of
accord and satisfaction must establish that there was a disputed or
unliquidated claim between the parties which they mutually resolved
through a new contract discharging all or part of their obligations
under the original contract (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pothos v Arverne Houses, 269 AD2d 377, 378; Trans World Grocers v Sultana Crackers,
257 AD2d 616, 617). The defendants established their respective
entitlement to judgment as a matter of law on the basis of an accord
and satisfaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).

The bold is mine.

CPLR R. 3211(a)(5) Converted to CPLR R. 3212

CPLR R. 3212 Motion for summary judgment

Hopper v McCollum, 2009 NY Slip Op 06315 (App. Div., 2nd, 2009)

[T]he defendant interposed a verified answer. In June 2008 the
defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on
the ground that the plaintiffs had received payment through their
homeowners' insurance policy and were not entitled to any additional
recovery from her. The Supreme Court, in effect, converted the motion
to dismiss into one for summary judgment dismissing the complaint and
granted the motion. We modify.

The Supreme Court properly, in effect, converted the motion to
dismiss to one for summary judgment since it was made after issue had
been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Schultz v Estate of Sloan, 20 AD3d 520; Tufail v Hionas, 156
AD2d 670, 671), and the parties clearly charted a summary judgment
course by laying bare their proof and submitting documentary evidence
and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711). However, upon such conversion, the Supreme Court [*2]erred
in granting the defendant's converted motion for summary judgment
dismissing the complaint. Contrary to the defendant's contention, the
plaintiffs are not precluded from maintaining this action against the
defendant simply because they received payment from their insurance
carrier (see generally Fisher v Qualico Contr. Corp., 98 NY2d 534, 538; Spectra Audio Research, Inc. v Chon, 62 AD3d 561; Corsa v Pacific Indem. Co., 52 AD3d 450, 451; Winkelmann v Hockins, 204
AD2d 623, 623-624). If the trier of facts in this matter finds the
defendant liable and awards damages to the plaintiffs, then the
plaintiffs' receipt of the insurance payment may be relevant as a
possible setoff against the damages award (see CPLR 4545[c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).

While the Court notes that because issue was joined–among other things–conversion was appropriate, that is not always the case. Consider Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009). There the Third Department allowed for a pre-answer summary judgment motion because the parties charted their course and it "treated defendants' summary
judgment motion as if issue had indeed been joined." (I took out the internal quotes).

Lately I've seen a lot of 3211 motions under subdivisions that are inapplicable. More often than not, they are 3212 motions being masked behind 3211.

Supplemental summons not filed–CPLR R. 305(a)–>Dismissed–CPLR R. 3211(a)(2)

CPLR R. 305 Summons; supplemental summons, amendment
(a) Summons; supplemental summons

CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action

CPLR § 203 Method of computing periods of limitation generally
(c) Claim in complaint where action commenced by filing.
In an action which is commenced by filing, a claim asserted in the
complaint is interposed against the defendant or a co-defendant united
in interest with such defendant when the action is commenced.

Benn v Losquadro Ice Co., Inc., 2009 NY Slip Op 06307 (App. Div., 2nd, 2009)

The plaintiff was injured on June 20, 2003, when she slipped and
fell while working at a restaurant known as Orin's Seafood Hideaway,
located at 1683 Utica Avenue in Brooklyn. She commenced this negligence
action against, among others, the defendant Losquadro Ice Company, Inc.
(hereinafter Losquadro), the owner of the subject premises. Losquadro
commenced a third-party action against the defendant third-party
defendant Foodsaver New York, Inc., a/k/a Orin's Seafood Hideaway
(hereinafter Foodsaver). The plaintiff filed an amended complaint on
April 11, 2006, adding Foodsaver as a defendant in the action. In its
answer to the third-party complaint, Foodsaver disclosed that it had
subleased a portion of the subject premises to the appellant Utica
Restaurant Corp. (hereinafter Utica). On June 9, 2006, Losquadro served
the parties and Utica with an amended third-party complaint, which
joined Utica as a third-party defendant. On September 5, 2006, the
plaintiff filed a second amended complaint which joined Utica as a
direct defendant.

It is the filing of a supplemental summons and complaint which
commences an action against a newly-joined defendant or a third-party
defendant (see CPLR 305[a]; Perez v Paramount Communications, 92 NY2d 749, 756; Tricoche v Warner Amex Satellite Entertainment Co., 48 [*2]AD3d 671, 673; Matter of Williams v County of Genesee,
306 AD2d 865, 867). It is undisputed that Losquadro's amended
third-party complaint was never filed with the court. Therefore, that
branch of Utica's motion which was pursuant to CPLR 3211(a)(2) to
dismiss the amended third-party complaint insofar as asserted against
it should have been granted.

Contrary to Utica's contention, however, it was not entitled to
dismissal pursuant to CPLR 3211(a)(5) of the plaintiff's second amended
complaint insofar as asserted against it. A claim asserted against a
defendant in an amended filing may relate back to claims previously
asserted against a codefendant for statute of limitations purposes
where the two defendants are "united in interest" (CPLR 203[c]; see Buran v Coupal, 87 NY2d 173; Brock v Bua,
83 AD2d 61). The deposition testimony of Orin Tucker, the owner of both
Foodsaver and Utica, demonstrated that the relationship between the two
companies was such that Utica could be charged with notice of the
institution of the action under this doctrine and would not be
prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87 NY2d at 178; Brock v Bua, 83 AD2d at 69).

The bold is mine.

CPLR § 901(a) Class certified; 10 is not enough, unless there is no union

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.