Preview
INDEX NO. 652249/2017
NYSCEF DOC. NO. 329 RECEIVED NYSCEF: 03/22/2024
Exhibit D
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
eee eeeee ene
RACHEL HERMAN, RENDA GREENHILL, and RANDY Index No. 652249/2017
WILKINS, Individually and on Behalf of the Putative Class
Members,
Plaintiffs, AFFIRMATION IN
OPPOSITION
-against-
Motion Seq. No. 002
JUDLAU CONTRACTING, INC.,
Defendant.
eee eeeee ene
FRANK T. CARA, an attorney duly admitted to practice law in the State of New
York, hereby affirms the truth of the following under penalty of perjury pursuant to CPLR §
2106:
1 Iam a partner at the law firm of Pepper Hamilton LLP, attorneys for Defendant
Judlau Contracting, Inc. (“JCI” or “Defendant”), and as such, am fully familiar with the facts and
circumstances set forth below.
2 I make this affirmation in in opposition to Plaintiffs’ Rachel Herman, Renda
Greenhill, and Randy Wilkins (collectively “Plaintiffs”) motion seeking an order: (i) permitting
Plaintiffs’ breach of contract claims for unpaid prevailing wages to be maintained as a class
defined as all persons employed by Defendant or subcontracted by Defendant through Network
of Patrols, Inc. at any time from April 26, 2011 through the present who worked as non-union
flaggers on public works projects in the State of New York; (ii) permitting Plaintiffs’ NYLL
claims for wage notice violations to be maintained as a class action on behalf of a subclass
defined as all persons employed by Defendant at any time from April 26, 2011 through the
present who worked as non-union flaggers on public works projects in the State of New York;
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(iii) permitting Plaintiffs Rachel Herman, Renda Greenhill and Randy Wilkins to be class
representatives for the class and subclass; (iv) appointing Pelton Graham LLC as Class Counsel;
(v) determining the content of the class action notice; (vi) directing Defendant to provide a list of
potential class members; and (vii) determining the method of service of class action notice to the
members of such proposed class.
3 Plaintiffs are operating under the misguided assumption that Plaintiffs and all of
the proposed class members performed work which qualifies as prevailing wage work for each
day and every hour worked on each Project where they performed work. However, Plaintiffs
have failed to meet their burden of proof to establish that Plaintiffs and all proposed class
members performed work entitling them to prevailing wage, the amount of time each individual
performed such work, the applicable prevailing wage, and that such performance was not
voluntary. While Judlau is not conceding that Plaintiffs, nor any of the proposed class members,
deviated from their job descriptions on any day or for any amount of time, to the extent Plaintiffs
seek to proceed as a class action, Plaintiffs have the burden to prove each of these elements.
4 Based on the foregoing, Plaintiffs fail to meet their burden of proofto proceed as
a class action because (i) Plaintiffs have failed to demonstrate that the proposed class fulfills the
numerosity requirement, or why this Court should waive it, and (ii) Plaintiffs have failed to
demonstrate that the proposed class has met the common question or typicality prerequisites, or
why this Court should waive it. Accordingly, Plaintiffs’ motion must be denied.
Background
5 Although it is impossible to tell which of the Defendant’s Projects that Plaintiffs
and the potential class members claim they may have worked on, the duties required of
pedestrian cross guards are fairly consistent.
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6. More importantly, under the relevant DDC and DOT contracts, a pedestrian cross
guard is not a prevailing wage position.
7
To the best of my knowledge and experience, DDC incorporates the City of New
York Department of Transportation Standard Highway Specifications, Volumes I & II, dated
November 1, 2010 (the “Highway Specifications”), by reference into all of its street construction
contracts. The Section 6.52 of the Highway Specifications, which describes the employment of
full-time uniformed pedestrian crossing guards, is annexed hereto as Exhibit A. The full version
of the Highway Specifications are available in sections on the Office of the New York City
Comptroller’s (the “Comptroller”) website at the following addresses:
https://www1 .nyc.gov/assets/dde/downloads/publications/infrastructure/h
wy_std_specs_101101_vol_l.pdf
https://www1 .nyc.gov/assets/dde/downloads/publications/infrastructure/h
wy_std_specs_101101_vol_2.pdf
https://www1 .nyc.gov/assets/ddc/downloads/publications/infrastructure/hi
ghway_addendum_to_10-11-01_std_spec_14-02-24 pdf
8 Section 6.52 of the Highway Specifications, in describing the employment of
uniformed full-time flagpersons, provides, in pertinent part:
6.52.2. DESCRIPTION. The Contractor shall furnish an adequate
number of competent flagpersons to control vehicular and
pedestrian traffic when it is necessary to maintain alternating
oneway traffic in one lane of a two-way roadway, and at all other
locations where construction operations, construction vehicles and
equipment, and temporary traffic patterns related to the
construction operations require positive temporary traffic control
for safe, efficient traffic operations.
6.52.3. METHODS. All flagpersons, whether paid for under this
item or not, shall be English speaking and adequately trained in
flagging operations by a recognized training program such as that
provided by the American Traffic Safety Services Association, the
National Safety Council, unions or construction industry
associations, or by an individual who holds a current certification
as a flagger training instructor from such a program. All
3
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flagpersons, whether paid for under this item or not, their apparel,
hand-signaling devices, and procedures to be used by them shall be
in compliance with the requirements of Chapter 6E. FLAGGER
CONTROL, in the Federal “Manual on Uniform Traffic Control
Devices for Streets and Highways” 2009 Edition, or later edition.
Prior to the start of flagging operations, the Contractor shall
provide to the Engineer a list of certified flagpersons to be used in
the contract, identifying the source of flagger training for each
individual. When requested by the Engineer, flagpersons shall
demonstrate their competency in flagging procedures. Flagpersons
not competent in flagging procedures to the satisfaction of the
Engineer shall be retrained or replaced at once. Each flagperson
paid under this item must be a full-time flagperson. If any worker
performing services under this item is also assigned the task of
directing construction equipment (as per attached Example #2
flagperson “‘A’’) or any laborer tasks, then such worker shall be
deemed to be subject to the provisions of Labor Law § 220
Prevailing Wage Schedule.
Exhibit A (emphasis added)
9 Pursuant to such contracts, pedestrian crossing guards are only entitled to
prevailing wages if they are “assigned the task of directing construction equipment...or any
laborer tasks.” Ex. A, §6.52.
10. Additionally, the Office of the New York City Comptroller (the “Comptroller”),
which is empowered by Labor Law § 220 (5)(e) to determine the prevailing wages for all trades
and occupations in the City, issued a memorandum (the “Comptroller’s Memorandum”), dated
May 21, 1998, describing when pedestrian crossing guards should be paid prevailing wages on
public works projects. The Comptroller’s Memorandum provides, in pertinent part:
When the worker assigned to those duties is not on a construction
work site, and is being utilized to alleviate vehicular congestion by
directing the flow of street traffic away from the vicinity of the
onstruction site, that worker is performing traffic control duty.
Accordingly, the worker does not fall within the purview of Labor
Law Section 220.
However, when a worker is utilized on, adjacent to, or in close
proximity to the construction work site, protecting the public from
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the inherent dangers on and about that site, safeguarding the work
crew from street traffic, directing public traffic away from the site,
and directing the movement of construction equipment in, on, and
off the site, that worker is performing flagging duties which fall
within the job specifications of the construction laborer.
The Comptroller’s Memorandum is annexed hereto as Exhibit B.
11. Defendant, in its regular course of business, requires that its pedestrian crossing
guards complete a “Pedestrian Crossing Guard Form”, which details the duties they perform at
regular intervals, to ensure that Defendant’s pedestrian crossing guards do not exceed the scope
of work for which they are hired, subjecting Defendant to the risk of having to pay the them
prevailing wages. A copy of the Pedestrian Crossing Guard Form is annexed hereto as Exhibit
Cc
12. Plaintiffs have not shown Pedestrian Crossing Guard forms for each proposed
class member that show they performed duties which quality for the payment of prevailing wage
13. Plaintiffs have also not shown that each potential class member has performed
duties beyond that which they were hired to perform, performed work entitling them to
prevailing wage, the amount of time each individual performed such work, the applicable
prevailing wage, and that such performance was not voluntary.
14. Accordingly, Plaintiffs have failed to demonstrate that the proposed class fulfills
the numerosity requirement, and have failed to demonstrate that the proposed class has met the
common question or typicality prerequisites.
Plaintiffs Have Failed to Show that the Prerequisites for Class Certification Have Been Met
15. A class action may be maintained in New York only after the following five
prerequisites of N.Y. C.P.L.R. 901(a) have been met: (1) the class is so numerous that joinder of
all members is impracticable; (2) common questions of law or fact predominate over any
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questions affecting only individual members; (3) the claims of the representative parties are
typical of the class as a whole; (4) the representative parties will fairly and adequately protect the
interests of the class; and (5) the class action is superior to other available methods for the fair
and efficient adjudication of the controversy.
16. Once these prerequisites of a class action are satisfied, the court must consider the
factors set out in C.P.L.R. 902, to wit, the possible interest of class members in maintaining
separate actions and the feasibility thereof, the existence of pending litigation regarding the same
controversy, the desirability of the proposed class forum and the difficulties likely to be
encountered in the management of a class action.
17. Plaintiff bears the burden of establishing compliance with the requirements of
both C.P.L.R 901 and 902.
Plaintiffs Have Failed to Show that the Proposed Class Meets the Numerosity Requirement
18. The party seeking class certification must show that “the class is so numerous that
joinder of all members, whether otherwise required or permitted, is impracticable.” CPLR §
901(a)(1).
19. In the context of CPLR 901(a)(1), although there is no mechanical or precise test
to determine whether the numerosity test has been met, the threshold for impracticability of
joinder seems to be around 40 although conversely, it has been held that the numerosity
requirement will not be satisfied when the class comprises 21 or fewer claimants. Galdamez v.
Biordi Constr. Corp., 50 A.D.3d 357 (1st Dept 2008).
20. Courts routinely deny motions for class certification where the nature and size of
the class is unascertainable because the motion relies on generalizations and conclusory
allegations. Dupack v. Nationwide Leisure Corp., 70 A.D.2d 568, (1st Dept 1979). The
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numerosity requirement is not met until each member of the potential class proves entitlement.
Scott v. Prudential Ins. Co., 80 A.D.2d 746 (4th Dept 1981).
21. Here, Plaintiffs have not established that they or the proposed class members have
performed duties entitling them to payment of prevailing wage. Plaintiffs have not even
identified the Projects, nor the locations at the Projects, that they and the proposed class
members allegedly worked at. Without such information allowing this Court to identify which
Plaintiffs and proposed class members, if any, performed work outside of their scope as a
pedestrian cross guard, and for how long those duties may have been performed, the numerosity
requirement is not met and class action is inappropriate.
22. Plaintiffs’ compiled list of proposed class members (see Exhibit 18 of the
Affirmation of Brent E. Pelton, Esq.) is not an accurate representation of the pedestrian crossing
guards hired by Judlau that are potentially eligible for inclusion in Plaintiffs’ proposed class.
While Judlau does not concede that there any individuals who would be appropriate for inclusion
in the class, at a minimum, Plaintiffs must establish that each individual to be included in the
proposed class performed work entitling them to prevailing wage, the amount of time each
individual performed such work, the applicable prevailing wage, and that such performance was
not voluntary.
23. Additionally, Plaintiffs have shown no reason why any individuals who believe
they are entitled to payment of prevailing wage cannot commence a separate proceeding.
24. Under the particular facts here, Plaintiffs have failed to make the requisite
showing to meet the numerosity requirement and have failed to show circumstances warranting
waiver of the numerosity requirement. Therefore, Plaintiffs cannot proceed as a class action.
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Plaintiffs Have Failed to Show that the Proposed Class Meets the Common Question or
Typicality Prerequisite
25. Another of the prerequisites to class certification requires that common questions
of law or fact must predominate the proposed class. CPLR § 901(a)(2). Similarly, Plaintiffs
must also show that its claims are typical of the claims of the class. CPLR § 901(a)(3). Plaintiff
has failed to make the requisite showing to satisfy these requirements.
26. Courts find that the requirements of common questions of law and fact over issues
involving class members is not met when an individual determination is needed for each
proposed class member, or when the claims of proposed class members do not derive from the
same course of conduct. Darns v. Sabol, 165 Misc. 2d 77 (Sup. Ct. New York County, 1995).
27. Here, Plaintiffs have alleged boilerplate facts in support of their claim that the
proposed class members all performed duties that entitle them to payment of prevailing wage for
the entire time they worked. These allegations are unsubstantiated and are insufficient to support
the commonality and typicality requirements to proceed as class action. Plaintiffs are required to
show that each proposed class member was hired as a pedestrian crossing guard but performed
specific duties which entitles them to prevailing wage, and that such duties were performed
voluntarily. Nowhere in Plaintiffs’ moving papers is the requisite showing made for the
proposed class members.
28. Even if Plaintiffs are able to make that showing, which they have not, the Court
must still engage in an individual analysis to determine the specific duties each class member
performed and the amount of time that the duties warranting payment of prevailing wage was
performed. Plaintiffs cannot summarily state that the proposed class members all summarily
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performed duties justifying payment of prevailing wage without specifically inquiring into each
of the proposed class members duties and the amount of time such duties were performed.
29. Plaintiffs have not done an individual analysis to determine that all of the
proposed class members share in the common question and typicality requirement. Moreover,
Plaintiffs do not even address how such an analysis could possibly be done without the
proceeding splintering into individual trials. In such cases, there is no advantage to be gained
from permitting the action to proceed as a class action. Rosenfeld v. A. H. Robins Co., 63 A.D.2d
11 (2nd Dept 1978).
30. Because Plaintiffs fail to demonstrate that the numerosity and typicality
requirements have been met, and have not shown why such requirements should be waived by
this Court, Plaintiffs’ motion seeking class certification should be denied.
Plaintiffs’ Violation of the Confidentiality Stipulation
31. With regard to Plaintiffs’ use of certain documents marked as confidential by
Defendant pursuant to a confidentiality stipulation (the “Stipulation”) entered into between the
parties dated July 18, 2018, the documents were used without proper authority by Plaintiffs. The
Stipulation was so-ordered by the Court on August 1, 2018. (Doc. No. 35).
32. Plaintiffs filed certain documents marked as confidential (including Plaintiffs’
Exhibits 19 — 21) without following the procedure specified in the Stipulation. Section 12(a) of
the Stipulation states that the confidential information “shall not be filed until the Court renders a
decision on the motion to seal.” See Doc. No. 35, Section 12(a).
33. In violation of the Stipulation, Plaintiffs filed Defendant’s confidential documents
without a decision ofthis Court and without prior consent of Defendant.
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34. The documents annexed as exhibits to the Affirmation of Brent E. Pelton, Esq. do
not cure Plaintiffs’ failure to establish the numerosity requirement, and (ii) demonstrate that the
proposed class has met the common question or typicality prerequisites.
35. Based on the foregoing, Plaintiffs have not met their burden of proof to proceed
as a class action.
WHEREFORE, it is respectfully requested that Plaintiffs motion be denied in its entirety.
Dated: New York, New York
September 6, 2019
/s/ Frank T. Cara
Frank T. Cara
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INFRASTRUCTURE DESIGN STANDARDS
STANDARD HIGHWAY
SPECIFICATIONS
VOLUME II of II
November 1, 2010
IEW YORK CITY
Ee, >
Preview
INDEX NO. 652249/2017 NYSCEF DOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 Exhibit D ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEF BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eee eeeee ene RACHEL HERMAN, RENDA GREENHILL, and RANDY Index No. 652249/2017 WILKINS, Individually and on Behalf of the Putative Class Members, Plaintiffs, AFFIRMATION IN OPPOSITION -against- Motion Seq. No. 002 JUDLAU CONTRACTING, INC., Defendant. eee eeeee ene FRANK T. CARA, an attorney duly admitted to practice law in the State of New York, hereby affirms the truth of the following under penalty of perjury pursuant to CPLR § 2106: 1 Iam a partner at the law firm of Pepper Hamilton LLP, attorneys for Defendant Judlau Contracting, Inc. (“JCI” or “Defendant”), and as such, am fully familiar with the facts and circumstances set forth below. 2 I make this affirmation in in opposition to Plaintiffs’ Rachel Herman, Renda Greenhill, and Randy Wilkins (collectively “Plaintiffs”) motion seeking an order: (i) permitting Plaintiffs’ breach of contract claims for unpaid prevailing wages to be maintained as a class defined as all persons employed by Defendant or subcontracted by Defendant through Network of Patrols, Inc. at any time from April 26, 2011 through the present who worked as non-union flaggers on public works projects in the State of New York; (ii) permitting Plaintiffs’ NYLL claims for wage notice violations to be maintained as a class action on behalf of a subclass defined as all persons employed by Defendant at any time from April 26, 2011 through the present who worked as non-union flaggers on public works projects in the State of New York; of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 (iii) permitting Plaintiffs Rachel Herman, Renda Greenhill and Randy Wilkins to be class representatives for the class and subclass; (iv) appointing Pelton Graham LLC as Class Counsel; (v) determining the content of the class action notice; (vi) directing Defendant to provide a list of potential class members; and (vii) determining the method of service of class action notice to the members of such proposed class. 3 Plaintiffs are operating under the misguided assumption that Plaintiffs and all of the proposed class members performed work which qualifies as prevailing wage work for each day and every hour worked on each Project where they performed work. However, Plaintiffs have failed to meet their burden of proof to establish that Plaintiffs and all proposed class members performed work entitling them to prevailing wage, the amount of time each individual performed such work, the applicable prevailing wage, and that such performance was not voluntary. While Judlau is not conceding that Plaintiffs, nor any of the proposed class members, deviated from their job descriptions on any day or for any amount of time, to the extent Plaintiffs seek to proceed as a class action, Plaintiffs have the burden to prove each of these elements. 4 Based on the foregoing, Plaintiffs fail to meet their burden of proofto proceed as a class action because (i) Plaintiffs have failed to demonstrate that the proposed class fulfills the numerosity requirement, or why this Court should waive it, and (ii) Plaintiffs have failed to demonstrate that the proposed class has met the common question or typicality prerequisites, or why this Court should waive it. Accordingly, Plaintiffs’ motion must be denied. Background 5 Although it is impossible to tell which of the Defendant’s Projects that Plaintiffs and the potential class members claim they may have worked on, the duties required of pedestrian cross guards are fairly consistent. 2 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 6. More importantly, under the relevant DDC and DOT contracts, a pedestrian cross guard is not a prevailing wage position. 7 To the best of my knowledge and experience, DDC incorporates the City of New York Department of Transportation Standard Highway Specifications, Volumes I & II, dated November 1, 2010 (the “Highway Specifications”), by reference into all of its street construction contracts. The Section 6.52 of the Highway Specifications, which describes the employment of full-time uniformed pedestrian crossing guards, is annexed hereto as Exhibit A. The full version of the Highway Specifications are available in sections on the Office of the New York City Comptroller’s (the “Comptroller”) website at the following addresses: https://www1 .nyc.gov/assets/dde/downloads/publications/infrastructure/h wy_std_specs_101101_vol_l.pdf https://www1 .nyc.gov/assets/dde/downloads/publications/infrastructure/h wy_std_specs_101101_vol_2.pdf https://www1 .nyc.gov/assets/ddc/downloads/publications/infrastructure/hi ghway_addendum_to_10-11-01_std_spec_14-02-24 pdf 8 Section 6.52 of the Highway Specifications, in describing the employment of uniformed full-time flagpersons, provides, in pertinent part: 6.52.2. DESCRIPTION. The Contractor shall furnish an adequate number of competent flagpersons to control vehicular and pedestrian traffic when it is necessary to maintain alternating oneway traffic in one lane of a two-way roadway, and at all other locations where construction operations, construction vehicles and equipment, and temporary traffic patterns related to the construction operations require positive temporary traffic control for safe, efficient traffic operations. 6.52.3. METHODS. All flagpersons, whether paid for under this item or not, shall be English speaking and adequately trained in flagging operations by a recognized training program such as that provided by the American Traffic Safety Services Association, the National Safety Council, unions or construction industry associations, or by an individual who holds a current certification as a flagger training instructor from such a program. All 3 3 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEF BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 flagpersons, whether paid for under this item or not, their apparel, hand-signaling devices, and procedures to be used by them shall be in compliance with the requirements of Chapter 6E. FLAGGER CONTROL, in the Federal “Manual on Uniform Traffic Control Devices for Streets and Highways” 2009 Edition, or later edition. Prior to the start of flagging operations, the Contractor shall provide to the Engineer a list of certified flagpersons to be used in the contract, identifying the source of flagger training for each individual. When requested by the Engineer, flagpersons shall demonstrate their competency in flagging procedures. Flagpersons not competent in flagging procedures to the satisfaction of the Engineer shall be retrained or replaced at once. Each flagperson paid under this item must be a full-time flagperson. If any worker performing services under this item is also assigned the task of directing construction equipment (as per attached Example #2 flagperson “‘A’’) or any laborer tasks, then such worker shall be deemed to be subject to the provisions of Labor Law § 220 Prevailing Wage Schedule. Exhibit A (emphasis added) 9 Pursuant to such contracts, pedestrian crossing guards are only entitled to prevailing wages if they are “assigned the task of directing construction equipment...or any laborer tasks.” Ex. A, §6.52. 10. Additionally, the Office of the New York City Comptroller (the “Comptroller”), which is empowered by Labor Law § 220 (5)(e) to determine the prevailing wages for all trades and occupations in the City, issued a memorandum (the “Comptroller’s Memorandum”), dated May 21, 1998, describing when pedestrian crossing guards should be paid prevailing wages on public works projects. The Comptroller’s Memorandum provides, in pertinent part: When the worker assigned to those duties is not on a construction work site, and is being utilized to alleviate vehicular congestion by directing the flow of street traffic away from the vicinity of the onstruction site, that worker is performing traffic control duty. Accordingly, the worker does not fall within the purview of Labor Law Section 220. However, when a worker is utilized on, adjacent to, or in close proximity to the construction work site, protecting the public from 4 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 the inherent dangers on and about that site, safeguarding the work crew from street traffic, directing public traffic away from the site, and directing the movement of construction equipment in, on, and off the site, that worker is performing flagging duties which fall within the job specifications of the construction laborer. The Comptroller’s Memorandum is annexed hereto as Exhibit B. 11. Defendant, in its regular course of business, requires that its pedestrian crossing guards complete a “Pedestrian Crossing Guard Form”, which details the duties they perform at regular intervals, to ensure that Defendant’s pedestrian crossing guards do not exceed the scope of work for which they are hired, subjecting Defendant to the risk of having to pay the them prevailing wages. A copy of the Pedestrian Crossing Guard Form is annexed hereto as Exhibit Cc 12. Plaintiffs have not shown Pedestrian Crossing Guard forms for each proposed class member that show they performed duties which quality for the payment of prevailing wage 13. Plaintiffs have also not shown that each potential class member has performed duties beyond that which they were hired to perform, performed work entitling them to prevailing wage, the amount of time each individual performed such work, the applicable prevailing wage, and that such performance was not voluntary. 14. Accordingly, Plaintiffs have failed to demonstrate that the proposed class fulfills the numerosity requirement, and have failed to demonstrate that the proposed class has met the common question or typicality prerequisites. Plaintiffs Have Failed to Show that the Prerequisites for Class Certification Have Been Met 15. A class action may be maintained in New York only after the following five prerequisites of N.Y. C.P.L.R. 901(a) have been met: (1) the class is so numerous that joinder of all members is impracticable; (2) common questions of law or fact predominate over any 5 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 questions affecting only individual members; (3) the claims of the representative parties are typical of the class as a whole; (4) the representative parties will fairly and adequately protect the interests of the class; and (5) the class action is superior to other available methods for the fair and efficient adjudication of the controversy. 16. Once these prerequisites of a class action are satisfied, the court must consider the factors set out in C.P.L.R. 902, to wit, the possible interest of class members in maintaining separate actions and the feasibility thereof, the existence of pending litigation regarding the same controversy, the desirability of the proposed class forum and the difficulties likely to be encountered in the management of a class action. 17. Plaintiff bears the burden of establishing compliance with the requirements of both C.P.L.R 901 and 902. Plaintiffs Have Failed to Show that the Proposed Class Meets the Numerosity Requirement 18. The party seeking class certification must show that “the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable.” CPLR § 901(a)(1). 19. In the context of CPLR 901(a)(1), although there is no mechanical or precise test to determine whether the numerosity test has been met, the threshold for impracticability of joinder seems to be around 40 although conversely, it has been held that the numerosity requirement will not be satisfied when the class comprises 21 or fewer claimants. Galdamez v. Biordi Constr. Corp., 50 A.D.3d 357 (1st Dept 2008). 20. Courts routinely deny motions for class certification where the nature and size of the class is unascertainable because the motion relies on generalizations and conclusory allegations. Dupack v. Nationwide Leisure Corp., 70 A.D.2d 568, (1st Dept 1979). The 6 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 numerosity requirement is not met until each member of the potential class proves entitlement. Scott v. Prudential Ins. Co., 80 A.D.2d 746 (4th Dept 1981). 21. Here, Plaintiffs have not established that they or the proposed class members have performed duties entitling them to payment of prevailing wage. Plaintiffs have not even identified the Projects, nor the locations at the Projects, that they and the proposed class members allegedly worked at. Without such information allowing this Court to identify which Plaintiffs and proposed class members, if any, performed work outside of their scope as a pedestrian cross guard, and for how long those duties may have been performed, the numerosity requirement is not met and class action is inappropriate. 22. Plaintiffs’ compiled list of proposed class members (see Exhibit 18 of the Affirmation of Brent E. Pelton, Esq.) is not an accurate representation of the pedestrian crossing guards hired by Judlau that are potentially eligible for inclusion in Plaintiffs’ proposed class. While Judlau does not concede that there any individuals who would be appropriate for inclusion in the class, at a minimum, Plaintiffs must establish that each individual to be included in the proposed class performed work entitling them to prevailing wage, the amount of time each individual performed such work, the applicable prevailing wage, and that such performance was not voluntary. 23. Additionally, Plaintiffs have shown no reason why any individuals who believe they are entitled to payment of prevailing wage cannot commence a separate proceeding. 24. Under the particular facts here, Plaintiffs have failed to make the requisite showing to meet the numerosity requirement and have failed to show circumstances warranting waiver of the numerosity requirement. Therefore, Plaintiffs cannot proceed as a class action. 7 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 Plaintiffs Have Failed to Show that the Proposed Class Meets the Common Question or Typicality Prerequisite 25. Another of the prerequisites to class certification requires that common questions of law or fact must predominate the proposed class. CPLR § 901(a)(2). Similarly, Plaintiffs must also show that its claims are typical of the claims of the class. CPLR § 901(a)(3). Plaintiff has failed to make the requisite showing to satisfy these requirements. 26. Courts find that the requirements of common questions of law and fact over issues involving class members is not met when an individual determination is needed for each proposed class member, or when the claims of proposed class members do not derive from the same course of conduct. Darns v. Sabol, 165 Misc. 2d 77 (Sup. Ct. New York County, 1995). 27. Here, Plaintiffs have alleged boilerplate facts in support of their claim that the proposed class members all performed duties that entitle them to payment of prevailing wage for the entire time they worked. These allegations are unsubstantiated and are insufficient to support the commonality and typicality requirements to proceed as class action. Plaintiffs are required to show that each proposed class member was hired as a pedestrian crossing guard but performed specific duties which entitles them to prevailing wage, and that such duties were performed voluntarily. Nowhere in Plaintiffs’ moving papers is the requisite showing made for the proposed class members. 28. Even if Plaintiffs are able to make that showing, which they have not, the Court must still engage in an individual analysis to determine the specific duties each class member performed and the amount of time that the duties warranting payment of prevailing wage was performed. Plaintiffs cannot summarily state that the proposed class members all summarily 8 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 performed duties justifying payment of prevailing wage without specifically inquiring into each of the proposed class members duties and the amount of time such duties were performed. 29. Plaintiffs have not done an individual analysis to determine that all of the proposed class members share in the common question and typicality requirement. Moreover, Plaintiffs do not even address how such an analysis could possibly be done without the proceeding splintering into individual trials. In such cases, there is no advantage to be gained from permitting the action to proceed as a class action. Rosenfeld v. A. H. Robins Co., 63 A.D.2d 11 (2nd Dept 1978). 30. Because Plaintiffs fail to demonstrate that the numerosity and typicality requirements have been met, and have not shown why such requirements should be waived by this Court, Plaintiffs’ motion seeking class certification should be denied. Plaintiffs’ Violation of the Confidentiality Stipulation 31. With regard to Plaintiffs’ use of certain documents marked as confidential by Defendant pursuant to a confidentiality stipulation (the “Stipulation”) entered into between the parties dated July 18, 2018, the documents were used without proper authority by Plaintiffs. The Stipulation was so-ordered by the Court on August 1, 2018. (Doc. No. 35). 32. Plaintiffs filed certain documents marked as confidential (including Plaintiffs’ Exhibits 19 — 21) without following the procedure specified in the Stipulation. Section 12(a) of the Stipulation states that the confidential information “shall not be filed until the Court renders a decision on the motion to seal.” See Doc. No. 35, Section 12(a). 33. In violation of the Stipulation, Plaintiffs filed Defendant’s confidential documents without a decision ofthis Court and without prior consent of Defendant. 9 of 10 ET) © NEW ORI OUN FRE d 7Q INDEX NO. 652249/2017 NYSCEP BOC. NO. 329 RECEIVED NYSCEF: 03/22/2024 34. The documents annexed as exhibits to the Affirmation of Brent E. Pelton, Esq. do not cure Plaintiffs’ failure to establish the numerosity requirement, and (ii) demonstrate that the proposed class has met the common question or typicality prerequisites. 35. Based on the foregoing, Plaintiffs have not met their burden of proof to proceed as a class action. WHEREFORE, it is respectfully requested that Plaintiffs motion be denied in its entirety. Dated: New York, New York September 6, 2019 /s/ Frank T. Cara Frank T. Cara 10 10 of 10 Ted INDEX NO. 652249/2017 29 OUN NYSCEF boc. WO. 3 RECEIVED NYSCEF: 03/22/2024 INFRASTRUCTURE DESIGN STANDARDS STANDARD HIGHWAY SPECIFICATIONS VOLUME II of II November 1, 2010 IEW YORK CITY Ee, >