Motion for Summary Judgment in Rachel Herman, Renda Greenhill, Randy Wilkins v. Judlau Contracting, Inc.| Trellis.Law

On April 26, 2017 a Exhibit,Appendix was filed involving a dispute between Rachel Herman, Randy Wilkins, Renda Greenhill, and Judlau Contracting, Inc., for Commercial Division in the District Court of New York County.

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Exhibit I
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SUPREME COURT OF THE STATE OF NEW YORK\
COUNTY OF NEW YORK

RACHEL HERMAN, RENDA
GREENHILL, and RANDY WILKINS,
Individually and on Behalf of the Putative
Class Members,
Index No. 652249/2017
Plaintiffs, Justice Andrew Borrok
Mot. No. 003
-against-

JUDLAU CONTRACTING, INC.,

Defendant.

NOTICE OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that, upon the annexed affirmation of Brent E. Pelton, Esq.,

sworn to October 26, 2020, the exhibits annexed thereto, the accompanying memorandum of law

in support of the Plaintiffs’ motion for summary judgment, and all the pleadings and proceedings

heretofore had herein, the undersigned moves this Court on November 30, 2020 at 9:30 a.m. in the

Motion Submission Part Courtroom, Room 130, 60 Centre Street, New York, NY 10007 for an

Order that

(1) Summary judgment is hereby granted as to Defendant’s liability on Plaintiffs’ breach

of contract claims for unpaid prevailing wages on behalf of the Class, including Plaintiffs’

methodology for calculating damages;

(2) Summary judgment is hereby granted as to Defendant’s liability on Plaintiff’s wage

notice claims for statutory wage notice damages on behalf of the Subclass, including Plaintiffs’

methodology for calculating damages;

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(3) The Court shall issue further orders pertaining to a damages proceeding to determine

the amount of prevailing wages and wage notice statutory damages to be awarded to Plaintiffs and

the Class Members, and

(4) for such other and further relief as the Court may deem just and proper.

For the Court’s convenience, attached please find Plaintiffs’ [PROPOSED] ORDER ON

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.

Dated: New York, New York
October 26, 2020
Respectfully submitted,

PELTON GRAHAM LLC

By: /s/ Brent E. Pelton
Brent E. Pelton
Taylor B. Graham
111 Broadway, Suite 1503
New York, New York 10006
Telephone: (212) 385-9700
Facsimile: (212) 385-0800

Attorneys for Plaintiffs and Class

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

RACHEL HERMAN, RENDA
GREENHILL, and RANDY WILKINS,
Individually and on Behalf of the Putative
Class Members,
Index No. 652249/2017
Plaintiffs, Justice Andrew Borrok
Mot. No. 002
-against-

JUDLAU CONTRACTING, INC.,

Defendant.

[PROPOSED] ORDER GRANTING
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

The above-captioned matter came before the Court by Motion for Summary Judgment, and

the Court, having reviewed the said Motion,

ORDERS that IT IS HEREBY ORDERED that:

1 Summary judgment is hereby granted as to Defendant’s liability on Plaintiffs’

breach of contract claims for unpaid prevailing wages on behalf of the Class, including Plaintiffs’

methodology for calculating damages;

2. Summary judgment is hereby granted as to Defendant’s liability on Plaintiff's wage

notice claims for statutory wage notice damages on behalf of the Subclass, including Plaintiffs’

methodology for calculating damages;

3 The Court shall issue further orders pertaining to a damages proceeding to

determine the amount of prevailing wages and wage notice statutory damages to be awarded to

Plaintiffs and the Class Members.
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It is SO ORDERED this day of. , 2020

Honorable Andrew Borrok
JS.C.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

RACHEL HERMAN, RENDA
GREENHILL, and RANDY WILKINS,
Individually and on Behalf of the Putative
Class Members,
Index No. 652249/2017
Plaintiffs, Justice Andrew Borrok
Mot. No. 003
-against-

JUDLAU CONTRACTING, INC.,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMEN

PELTON GRAHAM LLC
Brent E. Pelton
Taylor B. Graham
111 Broadway, Suite 1503
New York, New York 10006
Telephone: (212) 385-9700

Attorneys for Plaintiffs
and the Class

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Table of Authorities ill

Exhibit List. vil

PRELIMINARY STATEMENT

I Course of Proceedings ......0....c.cccccceeceeseeeseeeseseessseseesesesssecseussesisassssssssisessesuesesesasseeneeeaees 3

I Relevant Contracts, Materials and Statutes

Ill. Relevant Facts.

A Defendant Provides Construction Work on Public Works Projects

B Relevant Contracts and Permits ..0......0.0..cceeecesesseseseesesessessseesesesessseenssesneaeseeneeeees 5

Plaintiffs and Class Members Performed Prevailing Wage Work for
Judlau

Judlau Flaggers Have Been Found to be Entitled to Prevailing Wages .................. 9

E Judlau Did Not Pay Plaintiffs and Class Members Prevailing Wages..................... 9

F. Judlau Did Not Provide Plaintiffs and Class Members Wage Notices 10

ARGUMENT 10

I LEGAL STANDARDS 10

A Summary Judgment 10

B Third-Party Beneficiary Recovery for Breach of Contract. 11

New York Prevailing Wage Law 12

1 NYLL § 220 12

2. N.Y.C. Admin. Code. § 19-142 14

NYLL Wage Notices 15

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IL PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT ON THEIR
BREACH OF CONTRACT (UNPAID PREVAILING WAGE) CLAIM 16

A Defendant Entered Into Contracts Requiring Payment of Prevailing Wages 16

B Plaintiffs Performed Prevailing Wage Work 17

1 Plaintiffs Are Laborers and Entitled to Prevailing Wages 17

2. All Plaintiffs Worked on Street Opening Projects and Are Entitled to
Prevailing Wages 20

Cc Judlau Is Liable to All Judlau and Network of Patrols Flaggers 20

D. Plaintiffs Are Entitled to Damages for Defendant's Breach 21

Ill. PLAINTIFFS ARE ENTITLED TO STATUTORY DAMAGES ON THEIR
WAGE NOTICE CLAIMS 22

A Defendant Failed to Provide Plaintiffs with Wage Notices 22

B Plaintiffs Are Entitled to Statutory Damages for Defendant's Violation of
NYLL § 195 17

CONCLUSION 23

Certification of Compliance 24

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CASES

Anderson v. Liberty Lobby, Inc.
477 US. 242 (1986). 11

Agency Constr. Corp. v. Hudacs,
205 A.D 980, 613 N.Y.S.2d 974 (3d Dept 1994) 20

Bucci v. Vill. of Port Chester,
22 N.Y.2d 195, 239 N.E.2d 335 (1968). 13

Cardona v. Maramont Corp.,
43 Misc.3d 1230(A), 2014 N.Y. Misc. LEXIS 2458 (N.Y. Ct. Sup. Ct. June 6, 2014) 1,11
Dadson Plumbing Corp. v. Goldin,
104 A.D.2d 346, 379 N.Y.S.2d 348 (1st Dept. 1984).............. 18

De La Cruz v. Caddell Dry Dock & Repair Co., Inc.,
21 N.Y.3d 540, 975 N.Y.S.2d 371 (2013)... 13

De La Cruz v. Trejo Liquors, Inc.,
No. 16-cv-4392, 2019 U.S. Dist. LEXIS (S.D.N.Y. Sept. 10, 2019) 23

Erie Cty Indus. Dev. Agency v. Roberts,
94 A.D.2d 532, 465 N.Y.S.2d 301 (4th Dept. 1983) 12

Fata v. S.A. Healy Co.,
289 N.Y. 401, 36 N.E.2d 339 (1943)... ccccccseesseeseeesessesesesseseseesssessssssessssssessssssessseenseeenenees 12

Gold v. N.Y Life Ins. Co.,
730 F.3d 137 (2d Cir. 2013)) 23

Hapanowicz v. Alexandria Tile Co.,
No. 11-cv-127, 2014 U.S. Dist. LEXIS 45007 (E.D.N.Y. Mar. 31, 2014) 20

Hardgers-Powell v. Angels In Your Home LLC,
330 F.R.D. 89 (W.D.N.Y. 2019) 11

Hernandez v. NJK Constr., Inc., (NJK Constrs. I)
No. 09-cv-4812, 2013 U.S. Dist. LEXIS 206673 (E.D.N.Y. Feb. 12, 2013) 17

Hernandez v. NJK Constr., Inc., (NJK Constrs. II)
No. 09-cv-4812, 2015 U.S. Dist. LEXIS 57568 (E.D.N.Y. May 1, 2015) 17, 22

Inclan v. New York Hospitality Grp., Inc.,

iii

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95 F. Supp. 3d 490 (S.D.N.Y. 2015) .csscssssssssssssssssussssssssssssssssssssssssssessessusitsistssussssssasesssssssee 23
Jackson v. U.S. Specialty Ins. Co.
Index. No. 156616/2012, 2013 N.Y. Mis LEXIS 369 (Sup. Ct. 1st JD, Jan. 21,
2014). 13

Kelly v. Beame,
15 N.Y.2d 103, 2014 N.E.2d 491 (1965) 13, 18

Kim, Kum Gang, Inc.,
No. 12-cv-6344, 2015 U.S. Dist. LEXIS 39096 (S.D.N.Y Mar. 19, 2015) 22

Lantry y. State,
6 N.Y.3d 49, 810 N.Y.S.2d 729 (2005) 13

O’Brien v. Port Auth. of N.Y. & N.J,
29 N.Y.3d 27, 52 N.Y.S.3d 68 (2017) 11

Quintanilla v. Suffolk Paving Corp.,
No. 09-cv-5331, 2019 U.S. Dist. LEXIS 30664 (E.D.N.Y. Feb. 22, 2019) 16

Ramos v SimplexGrinnell, LP (Ramos I)
796 F. Supp. 2d 346 (E.D.N.Y. 2011) 12, 13, 16

Ramos v SimplexGrinnell, LP (Ramos II)
740 F.3d 852 (2d Cir. 2014). 19

Solouk v. European Copper Specialties, Inc.,
No. 14-cv-8954, 2019 U.S. Dist. LEXIS 81267 (S.D.N.Y. May2, 2019) 13

Tenap Constr. Corp. v. Roberts,
141 A.D.2d 81 (2d Cir. 1988) 18

VisionChina Media Inc. v. Shareholder Representative Servs.,
109 A.D.3d 49, 967 N.Y.S.2d 338 (1st Dept. 2013), 12

STATUTES, RULES, AND REGULATIONS

New York Constitution
Art. 1

New York C.P.L.R.
§ 5001 21
§ 5004, 22

New York Lab. Law

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§ 195 10, 15, 22, 23
§ 198 2, 22
§ 220. 8, 12, 13, 16

N.Y.C. Admin. Code
§ 19 8, 14, 15, 20

Rules of the City of New York
§ 2. 15

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Exhibit List

Plaintiffs’ Class Action Complaint. (Doc. No. 1).
Expert Report of Mr. Thomas Nodell and exhibits cited therein.
Referenced pages from the deposition of Paul Critelli.
Referenced pages from the deposition of, David Summa.
Referenced pages from Volumes 1-3 of the Bid Booklet for Public Works Project MED-
609.
Referenced pages from Volumes 1-3 of the Bid Booklet for Public Works Project
HWMWTCAGB.
Referenced pages from the “Request for Proposals” for Public Works Project MED-607.
Referenced pages from Volumes 1-3 for Public Works Project MED-625.
“Notice Details” from “The City Record Online (CROL),” titled “Installation of Water
Mains and Appurtenances for New Building Construction and for Improvements to the
New Building Construction and for Improvement to the Citys Water Main Distribution
System and Fire Protection in Various Locations-Manhattan” for Public Works Project
MED-645.
10. Referenced pages from the City of New York Standard Construction Contract dated March
2017.
11 “The City Record,” Volume CXLIV Number 63, dated Monday, April 3, 2017.
12. Referenced pages from “Site Specific Health & Safety Plan,” Rev. 2, dated May 11, 2017,
for Public Works Project MED-607.
13 E-mail communication dated March 28, 2017.
14. Street Opening Permits for Public Works Project HWMWTCAGB.
15 Street Opening Permits for Public Works Project MED-609.
16. Sample of certified payroll for Public Works Project MED-645.
17 Referenced pages from the deposition of Plaintiff Randy Wilkins.
18 Referenced pages from the deposition of Plaintiff Rachel Herman.
19 Referenced pages from the deposition of Plaintiff Renda Greenhill.
20. E-mail communication dated January 22, 2016.
21 E-mail communications dated April 21,2017 and December 19, 2016.
22. E-mail communications dated November 4, 2014.
23 E-mail communications dated June 1 and 2, 2017 and September 1, 2010.
24 E-mail communication dated April 19, 2017
25 E-mail communication dated June 2, 2015.
26. E-mail communications dated Sept. 30, 2016 and Sept. 26, 2016.
27 Pedestrian Crossing Guard forms
28 E-mail communication dated April 6, 2017.
29 E-mail communication dated October 2, 2015.
30. Memorandum dated May 21, 1998 from the City of New York Office of the Comptroller
31 Prevailing Wage Memorandum dated March 13, 2001 from the City of New York Office
of the Comptroller.
32. Memorandum dated July 1, 2010 from the City of New York Office of the Comptroller.
33 Referenced pages of the deposition of Thomas Nodell.
34 E-mail communications dated March 23, 2016.
35 E-mail communication dated May 14, 2012.

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36 E-mail communication dated May 22, 2013.
37 OCMC Traffic Stipulations
38 Email communications dated January 10, 2017, October 21, 2016, January 13, 2017,
September 21, 2016 and August 22, 2016.
39 Letter dated September 20, 2012.
40. Letters dated July 14, 2017 and February 14, 2017.
41 E-mail communication dated November 24, 2014.
42.Respondents’ Answer to the Administrator’s Pre-Hearing Exchange, dated March 28,
2016.
43 Consent Findings and Order issued by the United States Department of Labor, dated
November 1, 2016.
44 Consent Findings and Order, Matter of MFM Contracting Corp., et al., No. 2015-DBA-
00029, dated June 2, 2016.
45 “Notice and Acknowledgment of Pay Rate and Payday,” dated January 2017.
46. Plaintiffs’ Summary of Damages for the Named Plaintiffs in PDF format.
47 Plaintiffs’ Individual Worksheets for the Named Plaintiffs and Rates spreadsheet in PDF
format.
48 Certified payroll documents from which Plaintiffs’ Damages Spreadsheet for the Named
Plaintiffs is calculated.
49 Prevailing Wage Schedules issued by the New York City Office of the Comptroller for the
Paver & Roadbuilder — Laborer classification for the class period.

vii

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PRELIMINARY STATEMENT

Named Plaintiffs Randy Wilkins, Renda Greenhill, Rachel Herman (the “Named

Plaintiffs”) and a certified class of non-union flaggers (the “Class” and, together with the Named

Plaintiffs, the “Plaintiffs”) respectfully submit this memorandum of law in support of their motion

for summary judgment. There is no dispute that Judlau Contracting, Inc. (“Judlau” or “Defendant”)

entered into contracts with the State of New York, the City of New York, their agencies and/or

local governmental entities (the “Public Works Contracts”) to perform work on projects funded by

these entities (the “Public Works Projects”) and that such contracts, as well as New York Labor

Law (“NYLL”) § 220 and the pertinent caselaw, require the payment of prevailing wages to all

laborers and workers on Public Works Projects.

Plaintiffs performed flagging duties for Defendant on certain Public Works Projects with

the primary objective of ensuring public and construction worker safety near active construction

sites. The relevant statutes, guidance from the Comptroller of the City of New York (the

“Comptroller’), the Public Works Contracts and related material to which Judlau was a party, and

the expert opinion of Thomas Nodell,! a former Investigator, Labor Law Division Chief, Director

of Classifications and Determination, and Director of Investigations for the Comptroller all affirm

that Plaintiffs performed prevailing wage work under the Public Works Contracts. While the

parties disagree as to the nature of some of Plaintiffs’ duties, this dispute is not material to

Plaintiffs’ claim, as Defendant’s own records and testimony affirm that flaggers worked within

close proximity to construction zones, performing flagging duties with the objective of ensuring

the safety of the public and workers at construction sites.

! The work of Mr. Nodell has been accepted in New York state courts and relied upon in interpreting prevailing wage
chedules. See Cardona v. Maramont Corp., 43 Misc.3d 1230(A), 2014 NY Misc LEXIS 2458, at *68-69 (NY Cty.
Sup. Ct. June 6, 2014).

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Further supporting Plaintiffs’ position is the fact that the Public Works Projects where they

worked required Judlau to obtain street opening permits that likewise required payment of

prevailing wages. The New York City Administrative Code (“N.Y.C. Admin. Code”) contains an

extremely broad prevailing-wage mandate, requiring payment of prevailing wages for all workers

on projects that require a street opening permit. On this basis alone, Plaintiffs must be found to

have performed covered prevailing wage work.

Using time and payroll records produced by Defendant that set forth the hours worked by

Plaintiffs on Public Works Projects and hourly rates paid and the applicable prevailing wage

schedules, Plaintiffs have created damages calculations that compute the total unpaid prevailing

wages and supplements that Class Members are owed during the class period based on records

received from Judlau.

Plaintiffs are also entitled to wage notices provided at the time of hire and February 1 of

each year, containing pay information required by NYLL § 195(1)(a). Defendant has not produced

any wage notices or provided any evidence that wage notices were provided to Plaintiffs. Plaintiffs

are therefore entitled to summary judgment on their wage notice claim and an award of statutory

damages as set forth in NYLL § 198(1-b).

Accordingly, Plaintiffs respectfully submit this memorandum of law in support of

Plaintiffs’ Motion for Summary Judgment seeking an order that (1) due to Judlau’s breach of the

Public Works Contracts, Plaintiffs, as third-party beneficiaries who performed prevailing-wage

work on Public Works Projects, are entitled to recover unpaid prevailing wages in an amount to

be determined at a damages proceeding,’ (2) due to Defendant’s failure to provide wage notices

as required by NYLL § 195(1)(a), Subclass members are entitled to recover statutory damages in

3 Plaintiffs are prepared to submit the voluminous full damages spreadsheet and underlying payroll records at the
instruction of the Court.

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accordance with NYLL § 198(1-b), and (3) for such other and further relief as the Court may deem

just and proper.

For the reasons set forth below, Plaintiffs’ motion should be granted in its entirety.

STATEMENT OF THE CASE

I Course of Proceedings

This NYLL class action was commenced with the filing of the Verified Summons and

Complaint on April 26, 2017 (the “Complaint”). (Doc. No. 1 (Pelton Aff., Ex. 1)).4 In the

Complaint, Plaintiffs allege three (3) causes of action: breach of contract for Defendant’s failure

to pay prevailing wages”; unjust enrichment and quantum meruit for Defendant’s failure to pay

prevailing wages; and failure to provide the wage notices required by NYLL § 195. (Doc. No. 1,

passim). Following Defendants’ motion to dismiss the Complaint (Doc. Nos. 6-14), the Court

dismissed Plaintiffs’ claims for unjust enrichment and quantum meruit (Count ID) and declined to

dismiss Plaintiffs’ remaining claims for breach of contract (Count I) and failure to provide wage

notices (Count III). (See Doc. No. 25).

The parties have completed fact and expert discovery, and Plaintiffs have submitted a Note

of Issue. (Pelton Aff. { 14; Doc. No. 90). Judlau produced over 33,000 pages of materials,

including Public Works Contracts, Street Opening Permits, other materials related to Public Works

Projects and detailed time and payroll records setting forth Plaintiffs’ daily and weekly hours

worked on Public Works Projects and hourly rates paid. (Pelton Aff. {| 5). Plaintiffs produced the

expert report of Mr. Thomas Nodell and the supporting documentation (the “Nodell Report”) to

Defendant. (Pelton Aff. J 12; Ex. 2). Defendant deposed the three (3) Named Plaintiffs and Mr.

4 Unless otherwise noted, all exhibits cited herein are attached to the Affidavit of Brent E. Pelton, Esq. (the “Pelton
Aff.”)

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Nodell, and Plaintiffs deposed David Summa, a Judlau operations manager, and Paul Critelli, a

Judlau utility manager. (Pelton Aff. {J 7, 12; Ex. 4 (Deposition of David Summa (“Summa’”)) 7:6-

19; Ex. 3 (Deposition of Paul Critelli (“Critelli”)) 6:14-15). After initially proffering an expert

report, Defendant withdrew the report and has affirmed that Judlau will not submit an expert report.

(Id. { 13).
On December 18, 2019, the Court granted Plaintiffs’ motion for class certification,

certifying (1) Plaintiffs’ breach of contract claim on behalf of a class consisting of all persons

employed by Defendant or subcontracted by Defendant through Network of Patrols, Inc.

(“Network of Patrols”) at any time since April 26, 2011 who worked as non-union flaggers on

public works projects in the State of New York and (2) Plaintiffs’ wage notice claim on behalf of

a subclass consisting of all persons employed by Defendant at any time since April 26, 2011 who

worked as non-union flaggers on public works projects in the State of New York (the “Subclass”).

(Doc. No. 84). Plaintiffs sent Notice of Pendency of Class Action (“Class Notice”) to

approximately two hundred and ninety-seven (297) Class Members on March 2, 2020. (Pelton Aff.

{[ 10). As of this date, zero (0) Class Members have opted out. (Pelton Aff. { 11).

IL. Relevant Facts

A. Defendant Provides Construction Work on Public Works Projects

Judlau is a construction company performing “heavy highway” infrastructure work

building and maintaining subway tunnels, installing water and sewer mains, and building and

repairing bridges in New York State, primarily in New York City. (Critelli 11:22-12:8; Summa

30:7-10, 39:12-23, 68:20-23, 69:8-11, 197:6-9). These projects receive government funding and

are contracted between Judlau and the State of New York, the City of New York, or agencies

thereof, including most frequently the City of New York Department of Design and Construction

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(“DDC”) (Summa 11:10-16, 12:17-19, 40:5-22, 73:2-13; Critelli 12:19-13:2, 14:22-24). As such,

Judlau construction sites are Public Works Projects. (Summa 80:6-9; Critelli 12:19-13:2). The

Public Works Projects on which Plaintiffs and Class Member flaggers worked are: MED-609°,

which spanned the Upper West Side, Greenwich Village and the Lower East side (Ex. 5 at 1);

HWMWTCASB, located at Chambers Street, between Broadway and West Street (Ex. 6 at 1);

MED-607, located at Second Avenue between East 33 and East 36" Street, Manhattan (Exs. 7 at

1; 11); MED-625, spanning several locations in Manhattan including Greenwich Village, the

Lower East Side and Washington Heights (Ex. 8, at 1); and MED-645, at various locations in

Manhattan. (Ex. 12) (collectively, the “Flagger Projects”).

B Relevant Contracts and Permits

The Flagger Projects are governed by Public Works Contracts between Judlau and New

York state and city agencies. (Summa 12:14-19, 77:8-13, 109:2-4). As required by NYLL §220(2),

all of the Public Works Contracts contain provisions requiring the payment of prevailing wages

(Summa 13:17-22, 47:14-22, 109:2-110:11, 195:11-196:13, 201:2-20; Critelli 12:19-13:16; Exs.

Exs. 5 at 4; 6 at 4, 7 at 2, 8 at 4). Judlau is subject to additional standard materials incorporated

into the Contracts including DDC Safety Requirement, the New York Standard Construction

Contract, and New York City Department of Transportation Highway Rules (“Highway Rules”).

(Exs. 5 at 5-7, 10; 6 at 5-7, 10; 8 at 5-7, 10). These items further affirm the prevailing-wage

requirements (Exs. 5 at 15; 6 at 14; 8 at 14; see also Ex. 10 at 6) and require the creation of a site-

specific safety plan that accords with the Highway Rules and addresses public and pedestrian

safety. (Exs. 5 at 7-9; 6 at 7-9; 7 at 3-4; 8 at 7-9).

5 As set forth in the attached contract materials, MED-609 encompasses MED-599, MED-610 and MED-606

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The Site Safety Plan for one Flagger Project require the presence of flaggers on job sites

near active construction work to protect pedestrians and workers (Ex. 12), and Defendant affirmed

that all Flagger Projects were subject to the same requirement per the Public Works Contracts.

(Summa 64:13-21, 78:14-21, 83:19-84:22, 124:17-25; Critelli 34:10-14; Ex. 13). In addition, as

the Flagger Projects necessitate the excavation of public roadways to enable workers to reach

sewer and water mains below the street, Judlau is required by law to obtain certain permits (the

“Street Opening Permits’) before beginning construction work. (Summa 47:23-25, 48:7-9; 196:8-

13; Critelli 17:19-22; Exs. 5 at 1; 6 at 1; 7 at 1; 8 at 1; 14; 15. The Street Opening Permits mandate

payment of prevailing wage to all workers on projects requiring such a permit, as required by

N.Y.C. Admin. Code § 19-142 (Exs. 14, 15) and the presence of flaggers at street-opening sites to

ensure public safety. (Summa 48:13-16, 195:8-196:7; Ex. 14).

In this instance, the record includes Public Works Contracts and materials incorporated

into such contracts requiring payment of prevailing wage for projects MED-609, MED-625

HWMWCTASB. (Exs. 5, 6, 8). Materials including a Request for Proposals, City Notices and

certified payroll confirm that MED-607 and MED-645 (Exs. 7; 9; 16) are likewise Public Works

Projects that, pursuant to NYLL § 220, supporting caselaw, and New York City Standard

Construction Contracts (e.g. Ex. 10) and as confirmed by Defendant’s testimony (supra at 5)

require the payment of prevailing wages. (Infra at 16-17).

c. Plaintiffs and Class Members Performed Prevailing Wage Work for Judlau

The primary objective of flaggers on Judlau Public Works Projects, as repeatedly

confirmed by Defendant’s testimony and Flagger Projects materials, is to ensure the safety of the

public and workers in and around active construction work zones. (Summa 21:25-23:14, 27:19-

24, 113:24-114:3, 122:8-125:12; Critelli 21:25-22:3, 57:2-4; Ex. 17 (Deposition of Randy

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Wilkins) 7:23-8:5; Ex. 18 (Deposition of Rachel Herman) 23:5-25:2; Ex. 19 (Deposition of Renda

Greenhill) 10:21-11:12; 12:18-13:3, 51:25-53:7; Exs. 12; 14).

Flaggers are typically assigned to work at a specific intersection or side of the street in

close proximity to construction zones and significant vehicle and pedestrian traffic. (Summa

14:14-20, 29:3-12, 62:24-63:7, 66:19-22, 128:10-22, 205:3-22; Critelli 22:4-10; Wilkins 9:19-

10:5, 19:6-21:8; Herman 12:20-13:9, 14:19-17:15, 35:10-18, 39:3-10, 40:18-41:6; Greenhill 30:4-

35:19). Maintenance and Protection of Traffic (“MPT”) drawings depict flagger placement at

construction sites, all within a block and primarily within the distance of an intersection from

active construction work areas, as do photographs submitted to Judlau by Network of Patrols. (Exs.

12; 21; 41). Mr. Summa confirmed that the MED-607 MPT Drawings fairly represent the location

of flaggers in relation to ongoing construction work on all Flagger Projects, in close to proximity

to plastic barrels demarcating the boundaries of the construction area and that flaggers stand near

construction fencing when construction equipment is entering or exiting the construction zone to

prevent pedestrians from walking into the area. (Summa 29:3-12, 127:21-128:22, 178:11-179:5).

It is Defendant’s position that Plaintiffs’ primary duty was flagging pedestrian traffic.

(Summa 14:14-15:15, 51:9-52:8; Critelli 21:25-22:19, 57:18-58:8). Plaintiffs have also described,

and numerous Pedestrian Crossing Guard Forms and internal Judlau e-mails affirm, that they also

routinely flagged street vehicular traffic and construction equipment. (Summa 144:20-145:9,

148:19-149:21, 169:3-170:3; Wilkins 8:3-10:9, 18:14-19:5, 34:14-37:19; Herman 15:13-20,

16:21-17:14, 35:22-36:8, 37:18-25, 38:4-24, 41:8-43:7, 54:3-18; Greenhill 26:10-27:9, 36:20-

41:7, 54:11-23; Exs. 27; 48). Plaintiffs have furthermore attested that they frequently performed

additional duties as requested by Judlau laborers and other construction employees, including

setting up and moving barrels and cones, setting up and removing caution tape from around the

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construction sites, sweeping the construction site, cleaning debris, and bringing tools to laborers.

(Wilkins 8:7-14, 14:12-16:5, 20:10-20, 32:17-33:24, 37:20-38:13,; Herman 11:13-23, 17:16-21,

36:9-37:6, 43:23-44:14; Greenhill 28:22-30:3, 43:12-23). However, the extent to which Plaintiffs

performed additional duties beyond pedestrian flagging is irrelevant for the purposes of summary

judgment, as their pedestrian flagging duties alone entitle them to prevailing wages under NYLL

§ 220, N.Y.C. Admin Code § 19-142 and the relevant contracts and permits.

These duties and conditions of employment are consistent for Plaintiffs across all Flagger

Projects. (Summa 30:21-25, 78:22-79:9, 113:12-114:3, 157:18-21; Wilkins 8:18-9:18, 10:6-12,

45:7-25, 47:7-16, 48:23-51:2; Herman 49:13-23, 55:24-56:25; Greenhill 56:15-57:5; Critelli

28:10-29:2). In addition to directly employing flaggers, Judlau also subcontracts flaggers through

Network of Patrols. (Summa 67:15-22; Critelli 30:9-20). The duties, certifications and contract

requirements are identical for flaggers hired directly by Judlau as for flaggers hired through a

subcontractor, such that that there is nothing on ajob site that would differentiate a flagger directly

employed by Judlau from a subcontracted flagger. (Summa 37:18-39:6).

The contracts, permits and other materials to which Judlau was subject on the Flagger

Projects called for the presence of flaggers for the express purpose of protecting public safety.

(Supra 6; Critelli 34:10-14). As the DDC put it, “flaggers are responsible for public safety.” Ex.

12). Plaintiffs completed a flagger training course and frequently had passed OSHA safety courses

as well. (Wilkins 11:25-13:7, 17:9-18:11, 40:12-41:9; Herman 9:16-17, 46:13-24; Greenhill 15:19,

46:6-21, 51:13-24). In fact, certification in a flagger training course is a requirement for many, if

not all, Judlau contracts, and flaggers without certifications are considered “high risk” safety

deviations at Public Works Projects. (Ex. 23; Summa 21:4-22:11, 41:25-42:15, 171:19-25; Critelli

57:5-14; see also Ex. 12 at 4-5; 24; 25; 26; 28). Plaintiffs were required by both Judlau and the

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Public Works Contracts to wear safety gear including boots, reflective vests, hard-hats, gloves and

goggles when performing flagger duties. (Summa 18:8-13, 24:9-11, 43:5-25, 84:15-22, 114:4-16).

At least some flagger training specifically set forth the correct, safe manner of flaggin

Case Info

Judge

Andrew Borrok Track Judge’s New Case

Case No.

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Document Filed Date

March 22, 2024

Case Filing Date

April 26, 2017

County

Parties

ALBERTSEN, JOANNE MARIE Attorney for the Plaintiff
CARA, FRANK T. Attorney for the Defendant
CATTERSON, JAMES MICHAEL Attorney for the Defendant
GRAHAM, TAYLOR BELL Attorney for the Plaintiff
Judlau Contracting, Inc. Defendant
PELTON, BRENT EDWARD Attorney for the Plaintiff
Rachel Herman Plaintiff
Randy Wilkins Plaintiff
Renda Greenhill Plaintiff
TRUNKES, VIRGINIA KRISTINA Attorney for the Defendant
VOLPE, DANIELLE JASMINE Attorney for the Defendant
ALISON MANGIATORDI Attorneys for Plaintiffs
BONNIE WEINSTOCK Attorney
JOSHUA VOLPE Attorney
BENJAMIN GRAHAM Attorney
DANIELLE LI Attorney
EMILY ANDERSON Attorney
RICHARD LEAR Attorneys for Defendants
MATTHEW CALI Attorney
JOHN VOLPE Attorney
ALISON LAM Attorney

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Exhibit,Appendix: Rachel Herman, Renda Greenhill, Randy Wilkins v. Judlau Contracting, Inc.

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