Preview
FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/29/2020
EXHIBIT D
FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/29/2020
David v Winthrop-University Hosp. Assn.
Supreme Court of New York, Queens County
January 20, 2015, Decided; January 20, 2015, Filed
700864 2013
Reporter
2015 N.Y. Misc. LEXIS 4801 *; 2015 NY Slip Op 32468(U)
floors of five separate hospital buildings. Nurse Manager
Denise Hodish supervises FPNA's, who currently
NIRVA DAVID and AMANDA HARRIOTT, on behalf of
number fifty, about half of which are full time employees
himself and all others similiarly situated employees,
and the other half part-time or per diem workers.
Plaintiff, -against- WINTHROP-UNIVERSITY
HOSPITAL ASSOCIATION, Defendant. Index Number Plaintiff David, hired in November, 2000, works an
700864 2013 average of two to four days a week, usually from 3:00
PM to 11:00 PM. She alleges that she has not been
compensated for work performed before and after her
scheduled shifts and during her thirty-minute lunch
Notice: THIS OPINION IS UNCORRECTED AND WILL break. Plaintiff Harriott, hired in 2008, [*2] works an
NOT BE PUBLISHED IN THE PRINTED OFFICIAL average of two to four days a week, usually from 3:00
REPORTS. PM to 11:00 PM, and she makes the same allegations
about uncompensaeed work.
Nurse Manager Hodish and Winthrop's other
supervisors have instructed FPNA's to report to the
Judges: [*1] Present: HONORABLE DUANE A. HART, nursing office ten to fifteen minutes prior to their
Justice. scheduled shifts to receive their assignments. The Daily
Attendance Records (DAR's) signed by FPNA's upon
their arrival at the nursing office show the scheduled
start and end times for their shifts and not the worker's
Opinion by: DUANE A. HART actual arrival and departure times.
FPNA's assigned on a one-to one basis to patients do
not receive compensation when they have to work past
the scheduled end time of their shifts because their
Opinion relief has not arrived on time. FPNA's also do not
receive compensation when they have to work through
their lunch breaks.
I. The Allegations of the Plaintiffs
II. The Allegations of Defendant Winthrop
PlaintiffNirva David and plaintiffAmanda Harriott are
members of the Float Pool Nursing Assistants (FPNA's) Defendant Winthrop provides all Nursing Assistants,
who work at defendant Winthrop University Hospital. including FPNA's, at least four different ways of
FPNA's typically assist nurses in providing patient care recording their time worked and of notifying
such as feeding, bathing, and walking, but FPNA's may management of alltime worked. The firstmethod isto
also be assigned on a one-to-one basis to particular record the time worked on the DAR or DAR Addendum,
patients who need special care. FPNA's report to the including extra time worked. The second method allows
nursing office located in the first floor of the medical the FPNA to examine biweekly time [*3] cards that are
center's main building for the purpose of receiving their available for review in the Nursing Office. FPNA's are
daily assignments, and they are then sent to one of instructed to review the time cards and either initial them
twenty-four nursing units that are located on twenty if they are correct or make any necessary changes,
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2015 N.Y. Misc. LEXIS 4801, *3
including work performed during a meal break or after 293 AD2d 726, 741 N.Y.S.2d 287; Ackerman v. Price
the end of scheduled shift, before they are sent to Waterhouse, 252 AD2d 179, 683 N.Y.S.2d 179.) "A
payroll. The thirdmethod allows an FPNA to submit a class action may be maintained in New York only after
payroll discrepancy form to the Nurse Manager. The the following five prerequisites of CPLR 901(a) have
fourth method allows an FPNA to use an "HR Hotline," been met: (1) the class is so numerous that joinder of all
and every check issued to an FPNA states: "Important members is impracticable; (2) common questions of law
Information": HRHotline: Have a discrimination issue or or fact predominate over any questions affecting only
were not properly compensated for O/T? Call 663- individual members; (3) the claims of the representative
4901." parties are typical [*5] of the class as a whole; (4) the
representative parties will fairlyand adequately protect
Those FPNA's that complied with the hospital's the interests of the class; and (5) the class action is
procedures were properly compensated for all extra superior to other available methods for the fair and
work performed. The named plaintiffsdid not regularly efficient adjudication of the controversy ***. Once these
comply with the proper procedures for receiving prerequisites are satisfied, the court must consider the
compensation for extra work. factors set out in CPLR 902, to wit, the possible interest
of class members in maintaining separate actions and
the feasibility thereof, the existence of pending litigation
III. Procedural Background regarding the same controversy, the desirability of the
proposed class forum and the difficultieslikely to be
Plaintiff Junior Prophete began an action captioned
encountered in the management of a class action ***."
Prophete v. Winthrop-University Hospital Association,
(Ackerman v. Price Waterhouse, supra, 191; Cooper v.
Index No. 700105/13 on November 23, 2012. Plaintiff
Sleepy's, LLC, 120 AD3d 742, 992 N.Y.S.2d 95)
Nirva David and plaintiff Amanda Harriott began an
action captioned David v. Winthrop-University Hospital,
CPLR 902 provides that the court may permit a class
Index No. 700864/13 on March 13, 2013. All three
action to be maintained only ifit finds that all of the
plaintiffs initially sought [*4]to maintain their actions on
prerequisites under CPLR 901 have been satisfied.
a class wide basis. Pursuant to a so-ordered stipulation
(See, Cooper v. Sleepy's, LLC, supra.) The plaintiff's the
dated July 10, 2013, this court consolidated the two
burden of showing that the criteria of CPLR 901 and 902
actions under Index No. 700105/13. PlaintiffProphete
have been satisfied. (Cooper v. Sleepy's, LLC, supra;
has abandoned his attempt to gain class action status
Globe Surgical Supply v. GEICO Ins. Co., 59 AD3d 129,
for a broader pool that he allegedly typified.
871 N.Y.S.2d 263; Bettan v. Geico General Ins. Co.,
296 AD2d 469, 745 N.Y.S.2d 545; Ackerman v. Price
The three plaintiffs allege that the practices of defendant
Waterhouse, supra; Canavan v. Chase Manhattan
Winthrop violate the New York State Labor Law and
Bank, 234 AD2d 493, 234 AD2d 494, 651 NYS2d 916.)
corresponding regulations. The first cause of action
alleges that the defendant failed to pay correct wages
New York's class action statute (CPLR 901-909) is
and overtime in violation of Labor Law§§ 190, 191,
similar to Federal Rule 23, and the prerequisites to the
193,198 and 652 and 12 NYCRR 142-3.1 and 142-3.2.
maintenance of a class action under state law are
The second cause of action alleges that the defendant
virtually identical to those expressed in Rule 23. (See,
failed to pay overtime in violation of New York State
Colt Industries Shareholder Litigation v. Colt Industries
Labor Law §650 et seq. and corresponding state
Inc., 77 NY2d 185, 566 N.E.2d 1160, 565 N.Y.S.2d
regulations.
755.) Because of the similarity, resort may be made to
federal cases in determining whether to grant class
action status. [*6] (See, City of New York v. Maul, 14
IV. Discussion
NY3d 499, 929 N.E.2d 366, 903 N.Y.S.2d 304; Geiger
v. American Tobacco Co., 181 Misc2d 875, 696
N.Y.S.2d 345, affd, 277 AD2d 420, 716 N.Y.S.2d 108.)
A. CPLR 901 and 902
B. Numerosity
CPLR 901 and 902 specify the factors which a court
must consider before permitting class action The statute does not specify a minimum number of
certification. (See, Negrin v. Norwest Mortgage, Inc., class members needed to satisfy the numerosity
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requirement, and there is no mechanical test to B. Commonality
determine whether the members of a putative class are
sufficiently numerous. (See, Globe Surgical Supply v. The second prerequisite of CPLR 901 concerns
GEICO Ins. Co., supra; Friar v. Vanguard Holding Corp., "questions of law or fact common to the class which
78 AD2d 83, 434 N.Y.S.2d 698.) "While there is no predominate [*8] over any questions affecting only
bright-line test or general rule for gauging numerosity, individual members." (CPLR 901 [a][2]; see, Karlin v.
the numerosity threshold seems to be 40" (N.Y.Prac., IVF America, Inc., 239 AD2d 562, 657 N.Y.S.2d 460.)
Com. Litig.in New York State Courts § 20:4 [3d ed.]),
and the federal courts have presumed numerosity at a A party seeking class certificationmust establish more
level of 40 members. (See, Consolidated Rail Corp. v. than that issues exist which are common to the entire
Town of Hyde Park, 47 F3d 473.) The New York State class and that they are substantial and significant; the
Legislature "contemplated classes involving as few as party must show that these common issues
18 members ***where the members would have predominate over unique circumstances that may
difficulty communicating with each other ***." (Borden v. pertain to each individual's situation. (Alix v. Wal-Mart
400 East 55th Street Associates, L.P., 24 N.Y.3d 382, Stores, Inc. 57 AD3d 1044, 868 N.Y.S.2d 372.) Class
998 N.Y.S.2d 729, 23 N.E.3d 997, 2014 WL 6607407.) action certification is not warranted where the"
proceeding would inevitably splinter into individual trials,
In the case at bar, Rodish testified at her pre-trial and would not achieve economics of time, effort,and
deposition that the current Float Pool consists of only expense, and promote uniformity of division [sic:
fiftyFPNA's, and the plaintiffsoffered no proof that decision] as to persons similarly situated ***." (Kleinberg
about the same number has been lost through attrition v. Frankel, 89 AD2d 556, 557-558, 452 N.Y.S.2d 117
since 2008. "Although the court may make common [internal quotation marks and citations omitted].)
sense assumptions to support a finding of numerosity, it
cannot do so on the basis of pure speculation without Yet, "commonality cannot be determined by any
any factual support." (Jeffries v. Pension Trust Fund of 'mechanical test' and *** the fact that questions peculiar
Pension, Hospitalization and Benefit Plan of Electrical to each individual may remain after resolution of the
Industry, 172 FSupp2d 389, 394 [*7] [internal quotation common questions is not fatal to the class action.
marks and citation omitted].) Moreover, defendant Rather, itis predominance, not identity or unanimity,
Winthrop has submitted statements and deposition that is the linchpin of commonality ***."(City of New York
testimony often current and former FPNA's who admit v. Maul, supra, 514.)
that they have been fully compensated for all work
In the case at bar, common issues do not predominate
performed. "It is settled law in New York that the
over the issues that are unique to each putative class
numerosity requirement can only be met by a proposed
member. For the pre-shift claim, the individual issues
class of individuals who have been aggrieved by the
include (1) who directed the employee to arrive [*9]
conduct forming the basis of the complaint ***." (Alix v.
early, (2) when the employee arrived for work, (3)
Wal-Mart Stores, Inc., 16 Misc3d 844, 848, 838
whether the additional time was de minimis, (4) whether
N.Y.S.2d 885, affd, Alix v. Wal-Mart Stores, Inc., 57
the employee applied for compensation for the
AD3d 1044, 868 N.Y.S.2d 372.) The two named
additional time, and (5) whether the employee was paid
plaintiffshave identified only three other FPNA's who
for the additional time. For the post-shift claim, the
claim that they have not been fullycompensated by
individual issues include (1) who instructed the
defendant Winthrop. In other words, even counting all
employee to stay late, (2) how much extra time the
three others as current members, only ten per cent of
employee worked, (3) whether the employee applied for
the current float pool has been identified as having an
compensation for the extra work, and (4) whether the
alleged grievance against defendant Winthrop, and this
employee received compensation for the extra work. For
low percentage cannot be excused on the basis that the
the claim involving meal breaks, the individual issues
putative members of the class - who are co-workers- are
include (1) whether the employee worked through a
having difficultycommunicating with each other. (See,
meal break, (2) whether the employee applied for
Borden v. 400 East 55th Street Associates, L.P., supra.)
compensation for working through the meal break, and
The court finds that the plaintiffs have not established (3) whether the employee received compensation for
numerosity as required by CPLR 901(a)(1). working through the meal break.
Any common issues pertaining to defendant Winthrop's
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allegedly improper employment practices do not
predominate over an individual employee's unique
circumstances. (See, Alix v. Wal-Mart Stores, Inc. 57
AD3d 1044, 868 NYS2d 372 [class certification denied
in action brought by former employees alleging
violations of the Labor Law, including failure to pay
earned wages and overtime and compulsion to [*10]
work off the clock].) The impact of defendant Winthrop's
alleged violations of the Labor Law on a particular
employee necessarily requires proof of the specifics of
each employee's complaint. (See, Alix v. Wal-Mart
Stores, Inc., supra.)
In this case predicated on violations of the Labor Law,
the issue of damages can only be proven on an
individual basis, not a class wide basis, making class
action certification inappropriate. (See, Roach v. T.L.
Cannon Corp., 2013 U.S. Dist. LEXIS 45373, 2013 WL
1316452.) "[T]he damages to which each class member
would be entitled would necessarily depend upon his or
her individual circumstances and could only be
accurately ascertained by a fact-specific inquiry into
each individual complaint ***." (Alix v. Wal-Mart Stores,
Inc., supra, 1047.) The proposed class action would
inevitably splinter into numerous individual trials. (See,
Kleinberg v. Frankel, supra.)
The court finds that the plaintiffs have not established
commonality as required by CPLR 901(a)(2).
C. Superiority
The plaintiffs did not show that a class action is superior
to other methods available to them for the redress of
their grievances. (See, CPLR 901 [a] [5]; Alix v. Wal-
Mart Stores, Inc., supra.) "[A]n administrative remedy is
available by which plaintiffs, in their status as
employees, could filewage related complaints with the
Department of Labor (see Labor Law §§ 196, 196-a)."
(Alix v. Wal-Mart Stores, Inc., supra, 1048.)
Dated: January 20, 2015
/s/ Duane A. Hart
J.S.C.
End of Document
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Dominguez v WRS Envtl. Servs. Inc.
Supreme Court of New York, New York County
June 3, 2019, Decided
157820/2017
Reporter
2019 N.Y. Misc. LEXIS 2973 *; 2019 NY Slip Op 31601(U) **
BACKGROUND
[**1] RAFAEL DOMINGUEZ, individually and on behalf Defendant WRS performs environmental cleanup
of all other persons similarly situated who were services such as asbestos, lead, microbial, and
employed by WRS ENVIRONMENTAL SERVICES, hazardous remediation and provides emergency
INC., and/or any other entities affiliated with, controlling, response and disaster recovery services with expertise
or controlled by WRS ENVIROMENTAL SERVICES, in emergency spill response, national disaster response,
INC., Plaintiffs, - against - WRS ENVIRONMENTAL wastewater treatment, dewatering, hazardous and non-
SERVICES INC. and JOHN DOE BONDING hazardous waste management, hazardous waste
COMPANY, Defendants. Index No. 157820/2017 remediation, asbestos and lead abatement and
groundwater and soil testing treatment (see Ranghelli
aff, ¶ 4). WRS is an environmental contractor and does
not hold licenses to do construction work in New York or
New Jersey (see id., ¶ 5). Plaintiffs Rafael Dominguez
Notice: THIS OPINION IS UNCORRECTED AND WILL
(Dominguez), Brett Volpe (Volpe) and Thomas Moran
NOT BE PUBLISHED IN THE PRINTED OFFICIAL
(Moran) are former employees of WRS. Dominguez
REPORTS.
worked for WRS from May 1, 2013 to July 31, 2013.
Volpe worked for WRS from [**2] May 28, 2013 to
February 6, 2015 (with last day of actual work on
November 25, 2014). Moran worked for WRS from April
24, 2013 to December 8, 2014. (Hodell aff, ¶¶ 4, [*2] 6,
Judges: [*1] HON. DAVID B. COHEN, J.S.C.
8). On September 1, 2017, Dominguez fileda putative
class action lawsuit against WRS to recover wages and
benefits that he claims he and the members of the
putative class were statutorily and or contractually
Opinion by: DAVID B. COHEN
entitled to for work on projects in New York and New
Jersey. Plaintiffs allege WRS performed work on
projects for
i) Consolidated Edison of New York, Inc. (ConEd) in
Opinion New York (ConEd Projects);
ii) Keyspan Corporate Services LLC d/b/a National
Grid (NG) in New York (NG Projects);
iii) PSEG Long Island, LLC (PSEG LI) in New York
Decision and Order (PSEG LI Projects); and
iv) Public Service Electric and Gas Company
HON. DAVID B. COHEN, J.:
(PSEG NJ) in New Jersey (PSEG NJ Projects)
Defendant WRS Environmental Services. Inc. (WRS)
(collectively referred to as the Utility Projects). Plaintiffs
moves to dismiss plaintiffs' complaint, pursuant to CPLR
allege "upon information and believe (sic)" that "since at
3211 (a) (1), (a) (3), and (a) (7), as against it. Plaintiffs
least August 31, 2011, [WRS] has been a party to
oppose the motion.
various contracts with [ConEd], [NG], [PSEG LI] and
[PSEG NJ] to perform clean-up, waste removal,
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restoration, and remediation work at the sites of the asserted claims as a matter of law" (Morgenthow &
Utility Projects" (collectively the Utility Contracts) Latham v Bank of NY Co., 305 AD2d 74, 78, 760
(Amended Complaint [Compl.], ¶ 12). Plaintiffsfurther N.Y.S.2d 438 [2003] [internal quotation marks and
allege "upon information and belief," that the Utility citations omitted]). Pursuant to CPLR 3211(a) (3) to
Contracts that govern the UtilityProjects in New York dismiss a complaint based upon the plaintiff's
alleged
and New Jersey [*3] contain a provision that requires lack of standing, the initialburden is on the moving
WRS to pay workers "prevailing wage and supplemental defendant to establish, prima facie, the plaintiff's lack of
benefits" as set by the New York and New Jersey standing as a matter of law (see HSBC Mtge. Corp.
Departments of Labor (Compl., ¶¶ 13-18). (USA) v MacPherson, 89 AD3d 1061, 934 N.Y.S.2d 428
[2d Dept 2011]). Pursuant to CPLR 3211 (a) (7), [**4] a
Plaintiffs allege that they worked for WRS at the sites of dismissal is warranted when "the pleading fails to state
the Utility Projects and, thus, are third-party a cause of action" (see also Leon v Martinez, 84 NY2d
beneficiaries of the alleged promise to pay prevailing 83, 88, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994]).
wages (Compl., ¶¶ 2, 15, 21). Plaintiffs also allege that
WRS violated the New Jersey Prevailing Wage Act, WRS moves to dismiss plaintiffs' first cause of action for
NJSA 34:11-56.40, [**3] by paying them "less than the breach of contract on the grounds that the documents
prevailing rate of wages and supplemental benefits to upon which it is based refute plaintiffs' claims, plaintiffs
which [they were] ... entitled for the labor [they] lack standing, and /or plaintiffshave failed to state a
furnished to WRS [on] Utility Projects located in New cause of action. "The elements of a breach of contract
Jersey" (Compl., ¶¶ 33). In plaintiffs' complaint, the first claim are formation of a contract between the parties,
cause of action for breach of contract and second cause performance by [*5] the plaintiff, the defendant's failure
of action for failure to pay the prevailing wage are to perform, and resulting damage" (Flomenbaum v New
alleged against only WRS. 1
York Univ., 71 AD3d 80, 91, 890 N.Y.S.2d 493 [1st Dept
2009] affd 14 NY3d 901, 929 N.E.2d 403, 903 N.Y.S.2d
339 [2010]). Plaintiffs' breach of contract claim is based
DISCUSSION on their alleged status as third-party beneficiaries
because they were not parties to any of the contracts
The standard of review on a motion to dismiss pursuant between WRS and any of the companies at issue.
to CPLR 3211 is well established. The court must
assume the truth of the allegations in the pleading and A party who seeks to enforce a contract as a third-party
"resolve all inferences which reasonably flow therefrom beneficiary must establish "(1) the existence of a valid
in favor of the pleading" (Sanders v Winship, 57 NY2d and binding contract between other parties, (2) that the
391, 394, 442 N.E.2d 1231, 456 N.Y.S.2d 720 [1982]). contract was intended for his benefit and (3) that the
In assessing a complaint, the Court must "determine benefit to him is sufficiently immediate, rather than
simply whether the facts alleged fit within any incidental, to indicate the assumption by the contracting
cognizable legal theory" [*4] (Morone v Morone, 50 parties of a duty to compensate him if the benefit is lost"
NY2d 481, 484, 413 N.E.2d 1154, 429 N.Y.S.2d 592 (Alicea v The City of New York, 145 AD2d 315, 317, 534
[1980]). "[T]he allegations of a complaint, supplemented N.Y.S.2d 983 [1st Dept 1988]). "The best evidence,
by a plaintiff'sadditional submissions, ifany, must be however, of whether the contracting parties intended a
given their most favorable intendment" (Arrington v New benefit to accrue to a third party can be ascertained
York Times Co., 55 NY2d 433, 442, 434 N.E.2d 1319, from the words of the contract itself' (Alicea, 145 AD2d
449 N.Y.S.2d 941 [1982]). If the facts stated are at 318). "Where a provision in the contract expressly
sufficient to support any cognizable legal theory, the negates enforcement by third parties, that provision is
motion to dismiss should be denied (Campaign for controlling" (Edward B. Fitzpatrick, Jr. Constr. Corp. v
Fiscal Equity v State of New York, 86 NY2d 307, 318, County of Suffolk, 138 AD2d 446, 449-450, 525
655 N.E.2d 661, 631 N.Y.S.2d 565 [1995]). "On a N.Y.S.2d 863 [2d Dept 1988]).
motion to dismiss pursuant to CPLR 3211 (a) (1), a
dismissal is warranted only if the documentary evidence Here, the documentary evidence i.e. the contracts at
submitted conclusively establishes a defense to the issue, demonstrate that there is no prevailing wage
contract term for which any plaintiffswere a third-party
beneficiary. All the contracts at issue contain a no third-
1 In
party beneficiary [*6] clause. The contract between
plaintiffs'
complaint, there is a third cause of action of
WRS and [**5] ConEd specifically states, "[t]here are
suretyship against defendant John Doe Bonding Company.
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no third-party beneficiaries of the [c]ontract" (Ranghelli wages are public works contracts. Where workers on a
aff, exhibit A). NG's Standards General Conditions public works project claim they have not been paid
dated June 4, 2012 applicable to the contract between prevailing wages pursuant to Labor Law § 220, they
WRS and NG specifically states, "This Agreement is not have two options: (1) enforce their [*8] employer's
intended to, and does not, create any rights or benefits statutory obligations to pay prevailing wages by
to individuals or entities other than Owner and complying with the statutory mechanism under Labor
Environmental Remediator" (Ranghelli aff, exhibit B). Law § 220 (7), including filing a complaint with the New
The contract between WRS and Servco retained the NG York State Department of Labor and awaiting a
terms until a new agreement was negotiated, therefore determination before filing a lawsuit under section 220;
NG's aforementioned provision also applied to Servco or (2) filea third-party beneficiary breach of contract
(see id, exhibit B, D). The 2010 and 2014 contracts claim against their employer (see Wright v Herb Wright
between WRS and PSEG NJ specifically state, Stucco, Inc., 50 NY2d 837, 407 N.E.2d 1348, 430
N.Y.S.2d 52 [1980]; Winsch v Esposito Bldg. Specialty,
"Contractor's status shall be that of Independent Inc., 48 AD3d 558, 852 N.Y.S.2d 199 [2d Dept 2008]).
Contractor, and the Contractor, it employees, Here, the documentary evidence shows that the
agents, or Subcontractors shall not, for any reason contracts at issue were not public works contracts
or purpose, be deemed to be a subcontractor, subject to the requirements of Labor Law § 220. The
agent, partner, or employee of the Company. This contracts at issue are with private utility companies, not
Contract creates no rights or benefits between the states of New York or New Jersey (see Smith
the Company and any person or entity other Affirmation, exhibits A-D). Therefore the branch of
than the Contractor." defendant WRS's motion to dismiss the first cause of
action is granted.
(Ranghelli aff, exhibit C, ¶ 19A [emphasis added]). The
relevant provisions in the contracts at issue expressly WRS moves to dismiss the second cause of action for
negate any intent to permit [*7] enforcement of its failure to pay the prevailing wage on the grounds that
terms by third parties such as plaintiffs,and therefore plaintiffs lack standing and cannot state a claim for
they have no standing to bring an action regarding any
violation of the New Jersey Prevailing Wage Act or the
of the contracts (see Mendel v Henry Phipps Plaza W, Labor Disputes in Public UtilitiesAct. The New Jersey
Inc., 6 NY3d 783, 786-787, 844 N.E.2d 748, 811 Prevailing Wage Act requires a public body to be a party
N.Y.S.2d 294 [2006] [holding that the "plaintiffslack to the contract to trigger the prevailing wage
standing to bring this action" because "plaintiffs failed to requirement (N.J. Stat. § 34:11-56.27). The statute
establish that the LDA was intended for their benefit .... provides:
[as] the LDA explicitlynegates any intent to permit its
enforcement by third parties such as plaintiffs"]; Board. "Every contract in excess of the prevailing wage
of Mgrs. of the Alexandria Condominium v contract threshold amount for any public [*9] work
Broadway/72nd Assoc., 285 AD2d 422, 424, 729 to which any public body is a party or for public
N.Y.S.2d 16 [ 1st Dept 2001] [ holding that "the CM work to be done on property or premises owned by
contract, by its own terms, expressly negates a public body or leased or to be leased by a public
enforcement of the contract by third parties, and that body shall contain a provision stating the prevailing
provision is controlling"]; Matter of Baltia Air Lines v wage rate which can be paid (as shall be
CIBC Oppenheimer Corp., 273 AD2d 55, 56, 709 designated by [**7] the commissioner) to the
N.Y.S.2d 54 [1st Dept 2000] [holding that [the] "plaintiff workers employed in the performance of the
has no standing to sue for such alleged breach as a contract and the contract shall contain a stipulation
third-party beneficiary of the clearing agreement, the that such workers shall be paid not less than such
express terms of which negate [**6] any implication of prevailing wage rate."
third-party beneficiary rights"]).
(id.).A "public body" is defined as "the State of New
Plaintiffs' reliance on (Agolli v PS Contr. of NJ Inc., 2017 Jersey, any of its political subdivisions, any authority
NY Slip Op 32495[U] [Sup Ct, NY County 2017]) and created by the Legislature of the State of New Jersey
other cases relating to public works contracts are and any instrumentality or agency of the State of New
misplaced because plaintiffs did not make any Jersey or of any of its political subdivisions" (N.J. Stat. §
allegations in their amended complaint demonstrating 34:11-56.26). Plaintiffs have not alleged in their
that the contracts under which they are owed prevailing amended complaint that WRS contracted w
Preview
FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/29/2020 EXHIBIT D FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/29/2020 David v Winthrop-University Hosp. Assn. Supreme Court of New York, Queens County January 20, 2015, Decided; January 20, 2015, Filed 700864 2013 Reporter 2015 N.Y. Misc. LEXIS 4801 *; 2015 NY Slip Op 32468(U) floors of five separate hospital buildings. Nurse Manager Denise Hodish supervises FPNA's, who currently NIRVA DAVID and AMANDA HARRIOTT, on behalf of number fifty, about half of which are full time employees himself and all others similiarly situated employees, and the other half part-time or per diem workers. Plaintiff, -against- WINTHROP-UNIVERSITY HOSPITAL ASSOCIATION, Defendant. Index Number Plaintiff David, hired in November, 2000, works an 700864 2013 average of two to four days a week, usually from 3:00 PM to 11:00 PM. She alleges that she has not been compensated for work performed before and after her scheduled shifts and during her thirty-minute lunch Notice: THIS OPINION IS UNCORRECTED AND WILL break. Plaintiff Harriott, hired in 2008, [*2] works an NOT BE PUBLISHED IN THE PRINTED OFFICIAL average of two to four days a week, usually from 3:00 REPORTS. PM to 11:00 PM, and she makes the same allegations about uncompensaeed work. Nurse Manager Hodish and Winthrop's other supervisors have instructed FPNA's to report to the Judges: [*1] Present: HONORABLE DUANE A. HART, nursing office ten to fifteen minutes prior to their Justice. scheduled shifts to receive their assignments. The Daily Attendance Records (DAR's) signed by FPNA's upon their arrival at the nursing office show the scheduled start and end times for their shifts and not the worker's Opinion by: DUANE A. HART actual arrival and departure times. FPNA's assigned on a one-to one basis to patients do not receive compensation when they have to work past the scheduled end time of their shifts because their Opinion relief has not arrived on time. FPNA's also do not receive compensation when they have to work through their lunch breaks. I. The Allegations of the Plaintiffs II. The Allegations of Defendant Winthrop PlaintiffNirva David and plaintiffAmanda Harriott are members of the Float Pool Nursing Assistants (FPNA's) Defendant Winthrop provides all Nursing Assistants, who work at defendant Winthrop University Hospital. including FPNA's, at least four different ways of FPNA's typically assist nurses in providing patient care recording their time worked and of notifying such as feeding, bathing, and walking, but FPNA's may management of alltime worked. The firstmethod isto also be assigned on a one-to-one basis to particular record the time worked on the DAR or DAR Addendum, patients who need special care. FPNA's report to the including extra time worked. The second method allows nursing office located in the first floor of the medical the FPNA to examine biweekly time [*3] cards that are center's main building for the purpose of receiving their available for review in the Nursing Office. FPNA's are daily assignments, and they are then sent to one of instructed to review the time cards and either initial them twenty-four nursing units that are located on twenty if they are correct or make any necessary changes, FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: Page 2 of06/29/2020 4 2015 N.Y. Misc. LEXIS 4801, *3 including work performed during a meal break or after 293 AD2d 726, 741 N.Y.S.2d 287; Ackerman v. Price the end of scheduled shift, before they are sent to Waterhouse, 252 AD2d 179, 683 N.Y.S.2d 179.) "A payroll. The thirdmethod allows an FPNA to submit a class action may be maintained in New York only after payroll discrepancy form to the Nurse Manager. The the following five prerequisites of CPLR 901(a) have fourth method allows an FPNA to use an "HR Hotline," been met: (1) the class is so numerous that joinder of all and every check issued to an FPNA states: "Important members is impracticable; (2) common questions of law Information": HRHotline: Have a discrimination issue or or fact predominate over any questions affecting only were not properly compensated for O/T? Call 663- individual members; (3) the claims of the representative 4901." parties are typical [*5] of the class as a whole; (4) the representative parties will fairlyand adequately protect Those FPNA's that complied with the hospital's the interests of the class; and (5) the class action is procedures were properly compensated for all extra superior to other available methods for the fair and work performed. The named plaintiffsdid not regularly efficient adjudication of the controversy ***. Once these comply with the proper procedures for receiving prerequisites are satisfied, the court must consider the compensation for extra work. factors set out in CPLR 902, to wit, the possible interest of class members in maintaining separate actions and the feasibility thereof, the existence of pending litigation III. Procedural Background regarding the same controversy, the desirability of the proposed class forum and the difficultieslikely to be Plaintiff Junior Prophete began an action captioned encountered in the management of a class action ***." Prophete v. Winthrop-University Hospital Association, (Ackerman v. Price Waterhouse, supra, 191; Cooper v. Index No. 700105/13 on November 23, 2012. Plaintiff Sleepy's, LLC, 120 AD3d 742, 992 N.Y.S.2d 95) Nirva David and plaintiff Amanda Harriott began an action captioned David v. Winthrop-University Hospital, CPLR 902 provides that the court may permit a class Index No. 700864/13 on March 13, 2013. All three action to be maintained only ifit finds that all of the plaintiffs initially sought [*4]to maintain their actions on prerequisites under CPLR 901 have been satisfied. a class wide basis. Pursuant to a so-ordered stipulation (See, Cooper v. Sleepy's, LLC, supra.) The plaintiff's the dated July 10, 2013, this court consolidated the two burden of showing that the criteria of CPLR 901 and 902 actions under Index No. 700105/13. PlaintiffProphete have been satisfied. (Cooper v. Sleepy's, LLC, supra; has abandoned his attempt to gain class action status Globe Surgical Supply v. GEICO Ins. Co., 59 AD3d 129, for a broader pool that he allegedly typified. 871 N.Y.S.2d 263; Bettan v. Geico General Ins. Co., 296 AD2d 469, 745 N.Y.S.2d 545; Ackerman v. Price The three plaintiffs allege that the practices of defendant Waterhouse, supra; Canavan v. Chase Manhattan Winthrop violate the New York State Labor Law and Bank, 234 AD2d 493, 234 AD2d 494, 651 NYS2d 916.) corresponding regulations. The first cause of action alleges that the defendant failed to pay correct wages New York's class action statute (CPLR 901-909) is and overtime in violation of Labor Law§§ 190, 191, similar to Federal Rule 23, and the prerequisites to the 193,198 and 652 and 12 NYCRR 142-3.1 and 142-3.2. maintenance of a class action under state law are The second cause of action alleges that the defendant virtually identical to those expressed in Rule 23. (See, failed to pay overtime in violation of New York State Colt Industries Shareholder Litigation v. Colt Industries Labor Law §650 et seq. and corresponding state Inc., 77 NY2d 185, 566 N.E.2d 1160, 565 N.Y.S.2d regulations. 755.) Because of the similarity, resort may be made to federal cases in determining whether to grant class action status. [*6] (See, City of New York v. Maul, 14 IV. Discussion NY3d 499, 929 N.E.2d 366, 903 N.Y.S.2d 304; Geiger v. American Tobacco Co., 181 Misc2d 875, 696 N.Y.S.2d 345, affd, 277 AD2d 420, 716 N.Y.S.2d 108.) A. CPLR 901 and 902 B. Numerosity CPLR 901 and 902 specify the factors which a court must consider before permitting class action The statute does not specify a minimum number of certification. (See, Negrin v. Norwest Mortgage, Inc., class members needed to satisfy the numerosity FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: Page 3 of06/29/2020 4 2015 N.Y. Misc. LEXIS 4801, *6 requirement, and there is no mechanical test to B. Commonality determine whether the members of a putative class are sufficiently numerous. (See, Globe Surgical Supply v. The second prerequisite of CPLR 901 concerns GEICO Ins. Co., supra; Friar v. Vanguard Holding Corp., "questions of law or fact common to the class which 78 AD2d 83, 434 N.Y.S.2d 698.) "While there is no predominate [*8] over any questions affecting only bright-line test or general rule for gauging numerosity, individual members." (CPLR 901 [a][2]; see, Karlin v. the numerosity threshold seems to be 40" (N.Y.Prac., IVF America, Inc., 239 AD2d 562, 657 N.Y.S.2d 460.) Com. Litig.in New York State Courts § 20:4 [3d ed.]), and the federal courts have presumed numerosity at a A party seeking class certificationmust establish more level of 40 members. (See, Consolidated Rail Corp. v. than that issues exist which are common to the entire Town of Hyde Park, 47 F3d 473.) The New York State class and that they are substantial and significant; the Legislature "contemplated classes involving as few as party must show that these common issues 18 members ***where the members would have predominate over unique circumstances that may difficulty communicating with each other ***." (Borden v. pertain to each individual's situation. (Alix v. Wal-Mart 400 East 55th Street Associates, L.P., 24 N.Y.3d 382, Stores, Inc. 57 AD3d 1044, 868 N.Y.S.2d 372.) Class 998 N.Y.S.2d 729, 23 N.E.3d 997, 2014 WL 6607407.) action certification is not warranted where the" proceeding would inevitably splinter into individual trials, In the case at bar, Rodish testified at her pre-trial and would not achieve economics of time, effort,and deposition that the current Float Pool consists of only expense, and promote uniformity of division [sic: fiftyFPNA's, and the plaintiffsoffered no proof that decision] as to persons similarly situated ***." (Kleinberg about the same number has been lost through attrition v. Frankel, 89 AD2d 556, 557-558, 452 N.Y.S.2d 117 since 2008. "Although the court may make common [internal quotation marks and citations omitted].) sense assumptions to support a finding of numerosity, it cannot do so on the basis of pure speculation without Yet, "commonality cannot be determined by any any factual support." (Jeffries v. Pension Trust Fund of 'mechanical test' and *** the fact that questions peculiar Pension, Hospitalization and Benefit Plan of Electrical to each individual may remain after resolution of the Industry, 172 FSupp2d 389, 394 [*7] [internal quotation common questions is not fatal to the class action. marks and citation omitted].) Moreover, defendant Rather, itis predominance, not identity or unanimity, Winthrop has submitted statements and deposition that is the linchpin of commonality ***."(City of New York testimony often current and former FPNA's who admit v. Maul, supra, 514.) that they have been fully compensated for all work In the case at bar, common issues do not predominate performed. "It is settled law in New York that the over the issues that are unique to each putative class numerosity requirement can only be met by a proposed member. For the pre-shift claim, the individual issues class of individuals who have been aggrieved by the include (1) who directed the employee to arrive [*9] conduct forming the basis of the complaint ***." (Alix v. early, (2) when the employee arrived for work, (3) Wal-Mart Stores, Inc., 16 Misc3d 844, 848, 838 whether the additional time was de minimis, (4) whether N.Y.S.2d 885, affd, Alix v. Wal-Mart Stores, Inc., 57 the employee applied for compensation for the AD3d 1044, 868 N.Y.S.2d 372.) The two named additional time, and (5) whether the employee was paid plaintiffshave identified only three other FPNA's who for the additional time. For the post-shift claim, the claim that they have not been fullycompensated by individual issues include (1) who instructed the defendant Winthrop. In other words, even counting all employee to stay late, (2) how much extra time the three others as current members, only ten per cent of employee worked, (3) whether the employee applied for the current float pool has been identified as having an compensation for the extra work, and (4) whether the alleged grievance against defendant Winthrop, and this employee received compensation for the extra work. For low percentage cannot be excused on the basis that the the claim involving meal breaks, the individual issues putative members of the class - who are co-workers- are include (1) whether the employee worked through a having difficultycommunicating with each other. (See, meal break, (2) whether the employee applied for Borden v. 400 East 55th Street Associates, L.P., supra.) compensation for working through the meal break, and The court finds that the plaintiffs have not established (3) whether the employee received compensation for numerosity as required by CPLR 901(a)(1). working through the meal break. Any common issues pertaining to defendant Winthrop's FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: Page 4 of06/29/2020 4 2015 N.Y. Misc. LEXIS 4801, *9 allegedly improper employment practices do not predominate over an individual employee's unique circumstances. (See, Alix v. Wal-Mart Stores, Inc. 57 AD3d 1044, 868 NYS2d 372 [class certification denied in action brought by former employees alleging violations of the Labor Law, including failure to pay earned wages and overtime and compulsion to [*10] work off the clock].) The impact of defendant Winthrop's alleged violations of the Labor Law on a particular employee necessarily requires proof of the specifics of each employee's complaint. (See, Alix v. Wal-Mart Stores, Inc., supra.) In this case predicated on violations of the Labor Law, the issue of damages can only be proven on an individual basis, not a class wide basis, making class action certification inappropriate. (See, Roach v. T.L. Cannon Corp., 2013 U.S. Dist. LEXIS 45373, 2013 WL 1316452.) "[T]he damages to which each class member would be entitled would necessarily depend upon his or her individual circumstances and could only be accurately ascertained by a fact-specific inquiry into each individual complaint ***." (Alix v. Wal-Mart Stores, Inc., supra, 1047.) The proposed class action would inevitably splinter into numerous individual trials. (See, Kleinberg v. Frankel, supra.) The court finds that the plaintiffs have not established commonality as required by CPLR 901(a)(2). C. Superiority The plaintiffs did not show that a class action is superior to other methods available to them for the redress of their grievances. (See, CPLR 901 [a] [5]; Alix v. Wal- Mart Stores, Inc., supra.) "[A]n administrative remedy is available by which plaintiffs, in their status as employees, could filewage related complaints with the Department of Labor (see Labor Law §§ 196, 196-a)." (Alix v. Wal-Mart Stores, Inc., supra, 1048.) Dated: January 20, 2015 /s/ Duane A. Hart J.S.C. End of Document FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 06/29/2020 Dominguez v WRS Envtl. Servs. Inc. Supreme Court of New York, New York County June 3, 2019, Decided 157820/2017 Reporter 2019 N.Y. Misc. LEXIS 2973 *; 2019 NY Slip Op 31601(U) ** BACKGROUND [**1] RAFAEL DOMINGUEZ, individually and on behalf Defendant WRS performs environmental cleanup of all other persons similarly situated who were services such as asbestos, lead, microbial, and employed by WRS ENVIRONMENTAL SERVICES, hazardous remediation and provides emergency INC., and/or any other entities affiliated with, controlling, response and disaster recovery services with expertise or controlled by WRS ENVIROMENTAL SERVICES, in emergency spill response, national disaster response, INC., Plaintiffs, - against - WRS ENVIRONMENTAL wastewater treatment, dewatering, hazardous and non- SERVICES INC. and JOHN DOE BONDING hazardous waste management, hazardous waste COMPANY, Defendants. Index No. 157820/2017 remediation, asbestos and lead abatement and groundwater and soil testing treatment (see Ranghelli aff, ¶ 4). WRS is an environmental contractor and does not hold licenses to do construction work in New York or New Jersey (see id., ¶ 5). Plaintiffs Rafael Dominguez Notice: THIS OPINION IS UNCORRECTED AND WILL (Dominguez), Brett Volpe (Volpe) and Thomas Moran NOT BE PUBLISHED IN THE PRINTED OFFICIAL (Moran) are former employees of WRS. Dominguez REPORTS. worked for WRS from May 1, 2013 to July 31, 2013. Volpe worked for WRS from [**2] May 28, 2013 to February 6, 2015 (with last day of actual work on November 25, 2014). Moran worked for WRS from April 24, 2013 to December 8, 2014. (Hodell aff, ¶¶ 4, [*2] 6, Judges: [*1] HON. DAVID B. COHEN, J.S.C. 8). On September 1, 2017, Dominguez fileda putative class action lawsuit against WRS to recover wages and benefits that he claims he and the members of the putative class were statutorily and or contractually Opinion by: DAVID B. COHEN entitled to for work on projects in New York and New Jersey. Plaintiffs allege WRS performed work on projects for i) Consolidated Edison of New York, Inc. (ConEd) in Opinion New York (ConEd Projects); ii) Keyspan Corporate Services LLC d/b/a National Grid (NG) in New York (NG Projects); iii) PSEG Long Island, LLC (PSEG LI) in New York Decision and Order (PSEG LI Projects); and iv) Public Service Electric and Gas Company HON. DAVID B. COHEN, J.: (PSEG NJ) in New Jersey (PSEG NJ Projects) Defendant WRS Environmental Services. Inc. (WRS) (collectively referred to as the Utility Projects). Plaintiffs moves to dismiss plaintiffs' complaint, pursuant to CPLR allege "upon information and believe (sic)" that "since at 3211 (a) (1), (a) (3), and (a) (7), as against it. Plaintiffs least August 31, 2011, [WRS] has been a party to oppose the motion. various contracts with [ConEd], [NG], [PSEG LI] and [PSEG NJ] to perform clean-up, waste removal, FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: Page 2 of06/29/2020 5 2019 N.Y. Misc. LEXIS 2973, *2; 2019 NY Slip Op 31601(U), **2 restoration, and remediation work at the sites of the asserted claims as a matter of law" (Morgenthow & Utility Projects" (collectively the Utility Contracts) Latham v Bank of NY Co., 305 AD2d 74, 78, 760 (Amended Complaint [Compl.], ¶ 12). Plaintiffsfurther N.Y.S.2d 438 [2003] [internal quotation marks and allege "upon information and belief," that the Utility citations omitted]). Pursuant to CPLR 3211(a) (3) to Contracts that govern the UtilityProjects in New York dismiss a complaint based upon the plaintiff's alleged and New Jersey [*3] contain a provision that requires lack of standing, the initialburden is on the moving WRS to pay workers "prevailing wage and supplemental defendant to establish, prima facie, the plaintiff's lack of benefits" as set by the New York and New Jersey standing as a matter of law (see HSBC Mtge. Corp. Departments of Labor (Compl., ¶¶ 13-18). (USA) v MacPherson, 89 AD3d 1061, 934 N.Y.S.2d 428 [2d Dept 2011]). Pursuant to CPLR 3211 (a) (7), [**4] a Plaintiffs allege that they worked for WRS at the sites of dismissal is warranted when "the pleading fails to state the Utility Projects and, thus, are third-party a cause of action" (see also Leon v Martinez, 84 NY2d beneficiaries of the alleged promise to pay prevailing 83, 88, 638 N.E.2d 511, 614 N.Y.S.2d 972 [1994]). wages (Compl., ¶¶ 2, 15, 21). Plaintiffs also allege that WRS violated the New Jersey Prevailing Wage Act, WRS moves to dismiss plaintiffs' first cause of action for NJSA 34:11-56.40, [**3] by paying them "less than the breach of contract on the grounds that the documents prevailing rate of wages and supplemental benefits to upon which it is based refute plaintiffs' claims, plaintiffs which [they were] ... entitled for the labor [they] lack standing, and /or plaintiffshave failed to state a furnished to WRS [on] Utility Projects located in New cause of action. "The elements of a breach of contract Jersey" (Compl., ¶¶ 33). In plaintiffs' complaint, the first claim are formation of a contract between the parties, cause of action for breach of contract and second cause performance by [*5] the plaintiff, the defendant's failure of action for failure to pay the prevailing wage are to perform, and resulting damage" (Flomenbaum v New alleged against only WRS. 1 York Univ., 71 AD3d 80, 91, 890 N.Y.S.2d 493 [1st Dept 2009] affd 14 NY3d 901, 929 N.E.2d 403, 903 N.Y.S.2d 339 [2010]). Plaintiffs' breach of contract claim is based DISCUSSION on their alleged status as third-party beneficiaries because they were not parties to any of the contracts The standard of review on a motion to dismiss pursuant between WRS and any of the companies at issue. to CPLR 3211 is well established. The court must assume the truth of the allegations in the pleading and A party who seeks to enforce a contract as a third-party "resolve all inferences which reasonably flow therefrom beneficiary must establish "(1) the existence of a valid in favor of the pleading" (Sanders v Winship, 57 NY2d and binding contract between other parties, (2) that the 391, 394, 442 N.E.2d 1231, 456 N.Y.S.2d 720 [1982]). contract was intended for his benefit and (3) that the In assessing a complaint, the Court must "determine benefit to him is sufficiently immediate, rather than simply whether the facts alleged fit within any incidental, to indicate the assumption by the contracting cognizable legal theory" [*4] (Morone v Morone, 50 parties of a duty to compensate him if the benefit is lost" NY2d 481, 484, 413 N.E.2d 1154, 429 N.Y.S.2d 592 (Alicea v The City of New York, 145 AD2d 315, 317, 534 [1980]). "[T]he allegations of a complaint, supplemented N.Y.S.2d 983 [1st Dept 1988]). "The best evidence, by a plaintiff'sadditional submissions, ifany, must be however, of whether the contracting parties intended a given their most favorable intendment" (Arrington v New benefit to accrue to a third party can be ascertained York Times Co., 55 NY2d 433, 442, 434 N.E.2d 1319, from the words of the contract itself' (Alicea, 145 AD2d 449 N.Y.S.2d 941 [1982]). If the facts stated are at 318). "Where a provision in the contract expressly sufficient to support any cognizable legal theory, the negates enforcement by third parties, that provision is motion to dismiss should be denied (Campaign for controlling" (Edward B. Fitzpatrick, Jr. Constr. Corp. v Fiscal Equity v State of New York, 86 NY2d 307, 318, County of Suffolk, 138 AD2d 446, 449-450, 525 655 N.E.2d 661, 631 N.Y.S.2d 565 [1995]). "On a N.Y.S.2d 863 [2d Dept 1988]). motion to dismiss pursuant to CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence Here, the documentary evidence i.e. the contracts at submitted conclusively establishes a defense to the issue, demonstrate that there is no prevailing wage contract term for which any plaintiffswere a third-party beneficiary. All the contracts at issue contain a no third- 1 In party beneficiary [*6] clause. The contract between plaintiffs' complaint, there is a third cause of action of WRS and [**5] ConEd specifically states, "[t]here are suretyship against defendant John Doe Bonding Company. FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: Page 3 of06/29/2020 5 2019 N.Y. Misc. LEXIS 2973, *6; 2019 NY Slip Op 31601(U), **5 no third-party beneficiaries of the [c]ontract" (Ranghelli wages are public works contracts. Where workers on a aff, exhibit A). NG's Standards General Conditions public works project claim they have not been paid dated June 4, 2012 applicable to the contract between prevailing wages pursuant to Labor Law § 220, they WRS and NG specifically states, "This Agreement is not have two options: (1) enforce their [*8] employer's intended to, and does not, create any rights or benefits statutory obligations to pay prevailing wages by to individuals or entities other than Owner and complying with the statutory mechanism under Labor Environmental Remediator" (Ranghelli aff, exhibit B). Law § 220 (7), including filing a complaint with the New The contract between WRS and Servco retained the NG York State Department of Labor and awaiting a terms until a new agreement was negotiated, therefore determination before filing a lawsuit under section 220; NG's aforementioned provision also applied to Servco or (2) filea third-party beneficiary breach of contract (see id, exhibit B, D). The 2010 and 2014 contracts claim against their employer (see Wright v Herb Wright between WRS and PSEG NJ specifically state, Stucco, Inc., 50 NY2d 837, 407 N.E.2d 1348, 430 N.Y.S.2d 52 [1980]; Winsch v Esposito Bldg. Specialty, "Contractor's status shall be that of Independent Inc., 48 AD3d 558, 852 N.Y.S.2d 199 [2d Dept 2008]). Contractor, and the Contractor, it employees, Here, the documentary evidence shows that the agents, or Subcontractors shall not, for any reason contracts at issue were not public works contracts or purpose, be deemed to be a subcontractor, subject to the requirements of Labor Law § 220. The agent, partner, or employee of the Company. This contracts at issue are with private utility companies, not Contract creates no rights or benefits between the states of New York or New Jersey (see Smith the Company and any person or entity other Affirmation, exhibits A-D). Therefore the branch of than the Contractor." defendant WRS's motion to dismiss the first cause of action is granted. (Ranghelli aff, exhibit C, ¶ 19A [emphasis added]). The relevant provisions in the contracts at issue expressly WRS moves to dismiss the second cause of action for negate any intent to permit [*7] enforcement of its failure to pay the prevailing wage on the grounds that terms by third parties such as plaintiffs,and therefore plaintiffs lack standing and cannot state a claim for they have no standing to bring an action regarding any violation of the New Jersey Prevailing Wage Act or the of the contracts (see Mendel v Henry Phipps Plaza W, Labor Disputes in Public UtilitiesAct. The New Jersey Inc., 6 NY3d 783, 786-787, 844 N.E.2d 748, 811 Prevailing Wage Act requires a public body to be a party N.Y.S.2d 294 [2006] [holding that the "plaintiffslack to the contract to trigger the prevailing wage standing to bring this action" because "plaintiffs failed to requirement (N.J. Stat. § 34:11-56.27). The statute establish that the LDA was intended for their benefit .... provides: [as] the LDA explicitlynegates any intent to permit its enforcement by third parties such as plaintiffs"]; Board. "Every contract in excess of the prevailing wage of Mgrs. of the Alexandria Condominium v contract threshold amount for any public [*9] work Broadway/72nd Assoc., 285 AD2d 422, 424, 729 to which any public body is a party or for public N.Y.S.2d 16 [ 1st Dept 2001] [ holding that "the CM work to be done on property or premises owned by contract, by its own terms, expressly negates a public body or leased or to be leased by a public enforcement of the contract by third parties, and that body shall contain a provision stating the prevailing provision is controlling"]; Matter of Baltia Air Lines v wage rate which can be paid (as shall be CIBC Oppenheimer Corp., 273 AD2d 55, 56, 709 designated by [**7] the commissioner) to the N.Y.S.2d 54 [1st Dept 2000] [holding that [the] "plaintiff workers employed in the performance of the has no standing to sue for such alleged breach as a contract and the contract shall contain a stipulation third-party beneficiary of the clearing agreement, the that such workers shall be paid not less than such express terms of which negate [**6] any implication of prevailing wage rate." third-party beneficiary rights"]). (id.).A "public body" is defined as "the State of New Plaintiffs' reliance on (Agolli v PS Contr. of NJ Inc., 2017 Jersey, any of its political subdivisions, any authority NY Slip Op 32495[U] [Sup Ct, NY County 2017]) and created by the Legislature of the State of New Jersey other cases relating to public works contracts are and any instrumentality or agency of the State of New misplaced because plaintiffs did not make any Jersey or of any of its political subdivisions" (N.J. Stat. § allegations in their amended complaint demonstrating 34:11-56.26). Plaintiffs have not alleged in their that the contracts under which they are owed prevailing amended complaint that WRS contracted w