Preview
FILED: NEW YORK COUNTY CLERK 02/08/2019 03:32 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/08/2019
EXHIBIT A
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LANGE CAMPBELL, individually and on behalf of all
other persons similarly situated, Index No.:
Plaintiffs,
- against -
SUMMONS
NEW YORK BOILER, INC., RICHARD BERGER and
DONALD BERGER,
Defendants.
TO THE ABOVE NAMED DEFENDANTS:
You are hereby summoned to serve upon Plaintiff’s attorneys an answer to the
Complaint in this action within 30 days after service of this summons. In case of your failure to
answer, judgment will be taken against you by default for the relief demanded in the complaint.
Dated: New York, New York
November 12, 2018
VIRGINIA & AMBINDER, LLP
By: __/s/Lloyd Ambinder
Lloyd Ambinder, Esq.
40 Broad Street 7th Floor
New York, New York 10004
(212) 943-9080
Lambinder@vandallp.com
Co-counsel to Plaintiffs and Putative Class
TO: New York Boiler, Inc.
5885 Preston Court
Brooklyn, New York 11234
Richard Berger
5885 Preston Court
Brooklyn, New York 11234
Donald Berger
5885 Preston Court
Brooklyn, New York 11234
1 of 7
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LANGE CAMPBELL, individually and on behalf of all
other persons similarly situated, Index No.:
Plaintiffs,
- against -
CLASS ACTION COMPLAINT
NEW YORK BOILER, INC., RICHARD BERGER and
DONALD BERGER,
Defendants.
Named Plaintiff, by his attorneys, Virginia & Ambinder, LLP, for their complaint against
Defendants, allege as follows:
PRELIMINARY STATEMENT
1. This action is brought on behalf of Named Plaintiff and a putative class of
individuals (collectively “Plaintiffs”) who furnished labor to Defendants New York Boiler, Inc.,
Richard Berger and Donald Berger (collectively “NY Boiler” or “Defendants”), on various New
York City Housing Authority (“NYCHA”) and other public work projects in New York
(hereinafter referred to as the “Public Works Projects”).
2. Named Plaintiff, individually and on behalf of the putative class, seeks to recover
unpaid prevailing wages, supplemental benefits, as well as overtime compensation which they are
statutorily and contractually entitled to receive for their services performed at the Public Works
Projects.
THE PARTIES
3. Named Plaintiff is an individual residing in the State of New York who worked as
a Boiler Maker and in other related construction trades for Defendants upon the Public Works
Projects.
1
2 of 7
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
4. Upon information and belief, Defendant New York Boiler, Inc., is a corporation
incorporated under the laws of the State of New York, with its principal place of business at 5885
Preston Court, Brooklyn, New York 11234. Defendant is engaged in the construction business.
5. Upon information and belief, Defendant Richard Berger is NY Boiler’s chief
executive officer and resides at 5885 Preston Court, Brooklyn, New York 11234. As the chief
executive officer, Defendant Richard Berger, along with Defendant Donald Berger managed and
oversaw NY Boiler’s day-to-day operations, he was responsible for determining NY
Boiler’s’employees’ rates and methods of pay and hours worked, and he had the authority, and
used this authority, to hire and fire NY Boiler employees.
6. Upon information and belief, Defendant Donald Berger is an officer, director or
shareholder of NY Boiler and resides at 5885 Preston Court, Brooklyn, New York 11234. As an
officer, director or shareholder, Defendant Donald Berger, along with Defendant Richard Berger
managed and oversaw NY Boiler’s day-to-day operations, was responsible for determining NY
Boiler’s’employees’ rates and methods of pay and hours worked, and had the authority, and used
this authority, to hire and fire NY Boiler employees.
CLASS ALLEGATIONS
7. This action is properly maintainable as a class action pursuant to Article 9 of the
New York Civil Practice Law and Rules.
8. This action is brought on behalf of Named Plaintiff and members of a putative class
consisting of each and every other person who performed construction trade work for Defendant
NY Boiler on the sites of the Public Works Projects, in such trades which include but are not
limited to Boiler Maker and Welder
2
3 of 7
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
9. The putative class is so numerous that joinder of all members is impracticable. The
size of the putative class is believed to be in excess of 40 individuals. In addition, the names of all
potential members of the putative class are not known.
10. The questions of law and fact common to the putative class predominate over any
questions affecting only individual members.
11. The claims of Named Plaintiff are typical of the claims of the putative class.
12. Named Plaintiff and his counsel will fairly and adequately protect the interests of
the putative class. Named Plaintiff has retained Counsel experienced in complex wage and hour
litigation.
13. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy.
GENERAL FACTUAL ALLEGATIONS
14. Upon information and belief, beginning in or about July 2012, NY Boiler entered
into a contract and/or contracts with NYCHA to perform work at various public housing locations
(the “Public Works Contracts”).
15. Upon information and belief, the Public Works Contracts called for boiler repair
and maintenance and other renovations and related work. The Public Works Contracts called for
NY Boiler to furnish the necessary labor and/or equipment and materials to perform work in
accordance with the terms of the Public Works Contracts.
16. Upon information and belief, a schedule of prevailing rates of wages and
supplements to be paid to all workers furnishing labor on the site of the Public Works Projects was
annexed to and formed a part of the Public Works Contracts.
3
4 of 7
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
17. Plaintiffs performed various types of construction-related improvement work,
including but not limited to boiler construction, repairs, maintenance, metal work, tube rolling and
cutting, tube bending, and other construction work at the Public Works Project.
18. Defendant NY Boiler failed to pay Named Plaintiff and members of the putative
class the prevailing rates of wages and supplements to which Plaintiffs are entitled.
19. Defendant NY Boiler also failed to pay Plaintiffs at a rate of time and one-half of
their hourly regular rate of pay when they performed work in excess of 40 hours in a seven day
work week.
FIRST CAUSE OF ACTION
AGAINST NY BOILER
BREACH OF CONTRACT
20. Named Plaintiff repeats and realleges the allegations set forth in the preceding
paragraphs.
21. Upon information and belief, the Public Works Contracts entered into by NY Boiler
set forth the prevailing rates of wages and supplemental benefits to be paid to the Plaintiffs.
22. Upon information and belief, those prevailing rates of wages and supplemental
benefits were made part of the Public Works Contracts for the benefit of the Plaintiffs.
23. Defendant NY Boiler breached the Public Works Contracts by failing to ensure that
the Plaintiffs received the prevailing rates of wages and supplemental benefits for all labor
performed upon the Public Works Projects.
24. Upon information and belief, by reason of Defendant NY Boiler’s breach of the
Public Works Contracts, the Plaintiffs have been damaged in an amount to be determined at trial.
4
5 of 7
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
SECOND CAUSE OF ACTION
AGAINST NY BOILER, DONALD AND RICHARD BERGER
NEW YORK LABOR LAW OVERTIME COMPENSATION
25. Plaintiffs repeat and reallege the allegations set forth set forth in the preceding
paragraphs.
26. In violation of New York Labor Law § 663 and 12 NYCRR 142-2.2, Defendants
NY Boiler, Richard and Donald Berger willfully failed to pay and ensure Plaintiff and the other
members of the putative class their statutorily required overtime compensation for the time they
worked in excess of forty hours a week.
27. By the foregoing reasons, NY Boiler along with Richard and Donald Berger are
liable to Plaintiff and the other members of the putative class in an amount to be determined at
trial, plus interest, attorneys’ fees and costs.
THIRD CAUSE OF ACTION
AGAINST NY BOILER, RICHARD AND DONALD BERGER–
FAILURE TO PAY WAGES
28. Plaintiffs repeat and reallege the allegations set forth in the preceding paragraphs.
29. The prevailing wages, supplemental benefits and overtime compensation not paid
to the Named Plaintiffs and the other members of the putative class were wages within the meaning
of New York Labor Law §§ 190, 198 and 198(1-a).
30. NY Boiler, Richard and Donald Berger violated New York Labor Law § 191 by
failing to timely pay Plaintiff and the other members of the putative class the required prevailing
wages, supplemental benefits and overtime.
31. By reason of the foregoing, NY Boiler along with Richard and Donald Berger are
liable to Plaintiffs and the other members of the putative class in an amount to be determined at
trial, plus damages, interest, attorneys’ fees and costs
5
6 of 7
FILED: NEW YORK COUNTY CLERK 11/13/2018
02/08/2019 08:29
03:32 AM
PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 1
10 RECEIVED NYSCEF: 11/13/2018
02/08/2019
WHEREFORE, Plaintiffs demand judgment:
(1) On their first cause of action, against Defendant NY Boiler, Inc. for unpaid
prevailing wages and supplemental benefits, in an amount to be determined at trial, plus interest,
attorneys’ fees and costs;
(2) On their second cause of action, against Defendants NY Boiler, Donald Berger and
Richard Berger for unpaid prevailing wages, supplemental benefits and overtime compensation,
in an amount to be determined at trial, plus interest, attorneys’ fees and costs;
(3) On their third cause of action, against Defendants NY Boiler, Donald Berger and
Richard Berger for unpaid prevailing wages, supplemental benefits and overtime compensation,
in an amount to be determined at trial, plus interest, attorneys’ fees and costs; and
(4) Any such other and further relief as the Court may deem just and proper.
Dated: New York, New York
November 12, 2018
VIRGINIA & AMBINDER, LLP
_______/s/ ____________
Lloyd R. Ambinder, Esq.
40 Broad Street, 7th Floor
New York, New York 10004
(212) 943-9080
Attorneys for Named Plaintiff and Putative Class
6
7 of 7
Preview
FILED: NEW YORK COUNTY CLERK 02/08/2019 03:32 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/08/2019 EXHIBIT A FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LANGE CAMPBELL, individually and on behalf of all other persons similarly situated, Index No.: Plaintiffs, - against - SUMMONS NEW YORK BOILER, INC., RICHARD BERGER and DONALD BERGER, Defendants. TO THE ABOVE NAMED DEFENDANTS: You are hereby summoned to serve upon Plaintiff’s attorneys an answer to the Complaint in this action within 30 days after service of this summons. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York November 12, 2018 VIRGINIA & AMBINDER, LLP By: __/s/Lloyd Ambinder Lloyd Ambinder, Esq. 40 Broad Street 7th Floor New York, New York 10004 (212) 943-9080 Lambinder@vandallp.com Co-counsel to Plaintiffs and Putative Class TO: New York Boiler, Inc. 5885 Preston Court Brooklyn, New York 11234 Richard Berger 5885 Preston Court Brooklyn, New York 11234 Donald Berger 5885 Preston Court Brooklyn, New York 11234 1 of 7 FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LANGE CAMPBELL, individually and on behalf of all other persons similarly situated, Index No.: Plaintiffs, - against - CLASS ACTION COMPLAINT NEW YORK BOILER, INC., RICHARD BERGER and DONALD BERGER, Defendants. Named Plaintiff, by his attorneys, Virginia & Ambinder, LLP, for their complaint against Defendants, allege as follows: PRELIMINARY STATEMENT 1. This action is brought on behalf of Named Plaintiff and a putative class of individuals (collectively “Plaintiffs”) who furnished labor to Defendants New York Boiler, Inc., Richard Berger and Donald Berger (collectively “NY Boiler” or “Defendants”), on various New York City Housing Authority (“NYCHA”) and other public work projects in New York (hereinafter referred to as the “Public Works Projects”). 2. Named Plaintiff, individually and on behalf of the putative class, seeks to recover unpaid prevailing wages, supplemental benefits, as well as overtime compensation which they are statutorily and contractually entitled to receive for their services performed at the Public Works Projects. THE PARTIES 3. Named Plaintiff is an individual residing in the State of New York who worked as a Boiler Maker and in other related construction trades for Defendants upon the Public Works Projects. 1 2 of 7 FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 4. Upon information and belief, Defendant New York Boiler, Inc., is a corporation incorporated under the laws of the State of New York, with its principal place of business at 5885 Preston Court, Brooklyn, New York 11234. Defendant is engaged in the construction business. 5. Upon information and belief, Defendant Richard Berger is NY Boiler’s chief executive officer and resides at 5885 Preston Court, Brooklyn, New York 11234. As the chief executive officer, Defendant Richard Berger, along with Defendant Donald Berger managed and oversaw NY Boiler’s day-to-day operations, he was responsible for determining NY Boiler’s’employees’ rates and methods of pay and hours worked, and he had the authority, and used this authority, to hire and fire NY Boiler employees. 6. Upon information and belief, Defendant Donald Berger is an officer, director or shareholder of NY Boiler and resides at 5885 Preston Court, Brooklyn, New York 11234. As an officer, director or shareholder, Defendant Donald Berger, along with Defendant Richard Berger managed and oversaw NY Boiler’s day-to-day operations, was responsible for determining NY Boiler’s’employees’ rates and methods of pay and hours worked, and had the authority, and used this authority, to hire and fire NY Boiler employees. CLASS ALLEGATIONS 7. This action is properly maintainable as a class action pursuant to Article 9 of the New York Civil Practice Law and Rules. 8. This action is brought on behalf of Named Plaintiff and members of a putative class consisting of each and every other person who performed construction trade work for Defendant NY Boiler on the sites of the Public Works Projects, in such trades which include but are not limited to Boiler Maker and Welder 2 3 of 7 FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 9. The putative class is so numerous that joinder of all members is impracticable. The size of the putative class is believed to be in excess of 40 individuals. In addition, the names of all potential members of the putative class are not known. 10. The questions of law and fact common to the putative class predominate over any questions affecting only individual members. 11. The claims of Named Plaintiff are typical of the claims of the putative class. 12. Named Plaintiff and his counsel will fairly and adequately protect the interests of the putative class. Named Plaintiff has retained Counsel experienced in complex wage and hour litigation. 13. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. GENERAL FACTUAL ALLEGATIONS 14. Upon information and belief, beginning in or about July 2012, NY Boiler entered into a contract and/or contracts with NYCHA to perform work at various public housing locations (the “Public Works Contracts”). 15. Upon information and belief, the Public Works Contracts called for boiler repair and maintenance and other renovations and related work. The Public Works Contracts called for NY Boiler to furnish the necessary labor and/or equipment and materials to perform work in accordance with the terms of the Public Works Contracts. 16. Upon information and belief, a schedule of prevailing rates of wages and supplements to be paid to all workers furnishing labor on the site of the Public Works Projects was annexed to and formed a part of the Public Works Contracts. 3 4 of 7 FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 17. Plaintiffs performed various types of construction-related improvement work, including but not limited to boiler construction, repairs, maintenance, metal work, tube rolling and cutting, tube bending, and other construction work at the Public Works Project. 18. Defendant NY Boiler failed to pay Named Plaintiff and members of the putative class the prevailing rates of wages and supplements to which Plaintiffs are entitled. 19. Defendant NY Boiler also failed to pay Plaintiffs at a rate of time and one-half of their hourly regular rate of pay when they performed work in excess of 40 hours in a seven day work week. FIRST CAUSE OF ACTION AGAINST NY BOILER BREACH OF CONTRACT 20. Named Plaintiff repeats and realleges the allegations set forth in the preceding paragraphs. 21. Upon information and belief, the Public Works Contracts entered into by NY Boiler set forth the prevailing rates of wages and supplemental benefits to be paid to the Plaintiffs. 22. Upon information and belief, those prevailing rates of wages and supplemental benefits were made part of the Public Works Contracts for the benefit of the Plaintiffs. 23. Defendant NY Boiler breached the Public Works Contracts by failing to ensure that the Plaintiffs received the prevailing rates of wages and supplemental benefits for all labor performed upon the Public Works Projects. 24. Upon information and belief, by reason of Defendant NY Boiler’s breach of the Public Works Contracts, the Plaintiffs have been damaged in an amount to be determined at trial. 4 5 of 7 FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 SECOND CAUSE OF ACTION AGAINST NY BOILER, DONALD AND RICHARD BERGER NEW YORK LABOR LAW OVERTIME COMPENSATION 25. Plaintiffs repeat and reallege the allegations set forth set forth in the preceding paragraphs. 26. In violation of New York Labor Law § 663 and 12 NYCRR 142-2.2, Defendants NY Boiler, Richard and Donald Berger willfully failed to pay and ensure Plaintiff and the other members of the putative class their statutorily required overtime compensation for the time they worked in excess of forty hours a week. 27. By the foregoing reasons, NY Boiler along with Richard and Donald Berger are liable to Plaintiff and the other members of the putative class in an amount to be determined at trial, plus interest, attorneys’ fees and costs. THIRD CAUSE OF ACTION AGAINST NY BOILER, RICHARD AND DONALD BERGER– FAILURE TO PAY WAGES 28. Plaintiffs repeat and reallege the allegations set forth in the preceding paragraphs. 29. The prevailing wages, supplemental benefits and overtime compensation not paid to the Named Plaintiffs and the other members of the putative class were wages within the meaning of New York Labor Law §§ 190, 198 and 198(1-a). 30. NY Boiler, Richard and Donald Berger violated New York Labor Law § 191 by failing to timely pay Plaintiff and the other members of the putative class the required prevailing wages, supplemental benefits and overtime. 31. By reason of the foregoing, NY Boiler along with Richard and Donald Berger are liable to Plaintiffs and the other members of the putative class in an amount to be determined at trial, plus damages, interest, attorneys’ fees and costs 5 6 of 7 FILED: NEW YORK COUNTY CLERK 11/13/2018 02/08/2019 08:29 03:32 AM PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 1 10 RECEIVED NYSCEF: 11/13/2018 02/08/2019 WHEREFORE, Plaintiffs demand judgment: (1) On their first cause of action, against Defendant NY Boiler, Inc. for unpaid prevailing wages and supplemental benefits, in an amount to be determined at trial, plus interest, attorneys’ fees and costs; (2) On their second cause of action, against Defendants NY Boiler, Donald Berger and Richard Berger for unpaid prevailing wages, supplemental benefits and overtime compensation, in an amount to be determined at trial, plus interest, attorneys’ fees and costs; (3) On their third cause of action, against Defendants NY Boiler, Donald Berger and Richard Berger for unpaid prevailing wages, supplemental benefits and overtime compensation, in an amount to be determined at trial, plus interest, attorneys’ fees and costs; and (4) Any such other and further relief as the Court may deem just and proper. Dated: New York, New York November 12, 2018 VIRGINIA & AMBINDER, LLP _______/s/ ____________ Lloyd R. Ambinder, Esq. 40 Broad Street, 7th Floor New York, New York 10004 (212) 943-9080 Attorneys for Named Plaintiff and Putative Class 6 7 of 7