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FILED: NEW YORK COUNTY CLERK 05/05/2020 05:15 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LANGE CAMPBELL, individually and on behalf of all Index No.: 160513/2018
other persons similarly situated,
Plaintiffs,
AFFIRMATION OF LLOYD
- against - AMBINDER IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
NEW YORK BOILER, INC., RICHARD BERGER and CLASS CERTIFICATION
DONALD BERGER,
Defendants.
LLOYD AMBINDER, an attorney admitted to practice law in the State of New York,
hereby affirms under the penalties of perjury that:
1. I am a partner with the firm Virginia & Ambinder, LLP, attorneys for the Named
Plaintiff and the putative class in this action (“Plaintiffs”). I submit this affirmation in support of
Plaintiffs’ motion for an Order pursuant to CPLR §§ 901 and 902, determining that this action may
proceed as a class action on behalf of:
All individuals employed by NEW YORK BOILER, INC., RICHARD BERGER and
DONALD BERGER. who furnished labor to Defendants on various New York City
Housing Authority and other public work projects in New York in and who
performed various types of construction-related improvement work, including but not
limited to boiler construction, repairs, maintenance, metal work, tube rolling and
cutting, and tube bending from July 2012 through the present. The defined class shall
not include any clerical, administrative, professional, or supervisory employees.
2. This action arises from the failure of Defendants NEW YORK BOILER, INC.,
RICHARD BERGER and DONALD BERGER (collectively “NY Boiler” or “Defendants”) to pay
and/or ensure payment of the prevailing rates of wages and supplemental benefits to the Named
Plaintiff and the other members of the putative class for work that they performed in furtherance
of various publicly financed contracts. This action further arises from Defendants’ failure to pay
Plaintiffs proper overtime compensation.
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3. Plaintiffs’ counsel are experienced commercial litigators who have successfully
represented classes in numerous class actions and have considerable experience in labor law cases
similar to the case at bar. Examples of some of the class actions and labor law cases in which
Virginia & Ambinder have represented plaintiffs include: Pesantez v. Boyle Environmental
Services, Inc., 251 A.D.2d 11 (1st Dept. 1998); Dabrowski v. Abax, Inc., 84 A.D.3d 633, 634-35
(1st Dept. 2011) (“Plaintiffs’ counsel has demonstrated its expertise and zealous representation of
the plaintiffs here, as well as in prior class action cases which have reached this court on appeal.”);
Galdamez v. Biordi Constr. Corp., 13 Misc. 3d 1224(A) (N.Y. Sup. Ct. N.Y. Cty. 2006), Pajaczek
v. Cema Constr. Corp., 18 Misc. 3d 1140(A) (N.Y. Sup. Ct. N.Y. Cty. 2008); Kudinov v. Kel-Tech
Constr. Inc., 65 A.D.3d 481 (1st Dept. 2009); Ortiz v. J.P. Jack Corp., 729 N.Y.S.2d 912 (2d Dept.
2001); Cardona v Maramont Corp., 2009 N.Y. Misc. LEXIS 5010 (N.Y. Sup. Ct. N.Y. Cty. Nov.
12, 2009); Nawrocki v. Proto Constr. & Dev. Corp., 27 Misc. 3d 1211(A) (N.Y. Sup. Ct. N.Y.
Cty. 2010); Morales v NAP Constr. Co., Inc., 2010 N.Y. Misc. LEXIS 3810 (N.Y. Sup. Ct. N.Y.
Cty. July 2, 2010); Marshall v Roselli Moving & Stor. Corp., 2012 N.Y. Misc. LEXIS 307 (N.Y.
Sup. Ct. N.Y. Cty. Jan. 23, 2012); Stecko v Three Generations Contr. Inc., 2013 N.Y. Misc. LEXIS
3035 (N.Y. Sup. Ct. N.Y. Cty. July 16, 2013); Weinstein v Jenny Craig Operations, Inc., 41 Misc.
3d 1220(A), 1220A (N.Y. Sup. Ct. 2013); Williams v Air Serve Corp., 2013 N.Y. Misc. LEXIS
2243 (N.Y. Sup. Ct. N.Y. Cty. May 23, 2013); Perez v. AC Roosevelt Food Corp., 10-cv-4824,
(E.D.N.Y. May 3, 2011)(Gleeson, J.); Guzman v. VLM, Inc., 2008 U.S. Dist. LEXIS 15821
(E.D.N.Y. March 2, 2008); Velez v. Majik Cleaning Service, Inc., 2005 WL 106895 (S.D.N.Y. Jan.
18, 2005); Barone v. Safway Steel Products, Inc., 2005 WL 2009882 (E.D.N.Y. Aug. 23, 2005);
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Brunson v. City of New York, 2000 WL 1876910 (S.D.N.Y. 2000); Brzychnalski v. UNESCO, Inc.,
35 F.Supp.2d 351 (S.D.N.Y. 1999).
4. Plaintiffs submit the following exhibits in support of their motion for class
certification:
a. A true and accurate copy of the Summons and Complaint is annexed hereto as
Exhibit A.
b. A true and accurate copy of a sampling of the Public Works Contracts, produced
by Defendants during pre-class certification discovery, is annexed hereto as
Exhibit B.
c. A true and accurate copy of a prevailing wage schedules, consisting of a sample
Davis Bacon Act Prevailing Wage Schedule and a sample New York Labor Law §
220, originally annexed to the Public Works Contracts is annexed hereto as Exhibit
C.
d. A true and accurate sampling of Defendants’ “Forms of Proposal” for a line item
bid submitted for “Boiler Welding and Repair for Various Developments Located
in the Borough of Manhattan” is annexed hereto as Exhibit D.
e. A true and accurate sampling of a second of Defendants’ “Forms of Proposal” for
a line item bid submitted for “Boiler Welding and Repair at Various Development
Located in the Borough of Brooklyn” is annexed hereto as Exhibit E.
f. A true and accurate copy of NYCHA’s “Specification for Boiler Welding and
Repairs at Various Developments Located in the Borough of Brooklyn” is annexed
hereto as Exhibit F.
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g. A true and accurate copy of the affidavit of Named Plaintiff Lange Campbell, with
supporting documentation, including copies of his earnings statements, NY Boiler
Identification Card, and pictorial documentation is annexed hereto in a single
document as Exhibit G.
h. A true and accurate copy of the affidavit of putative class member Omari Rodney
is annexed hereto as Exhibit H.
i. A true and accurate copy of the affidavit of putative class member Vivian Clarke,
with supporting documentation, including a copy of his earnings statement and
pictorial documentation, is annexed hereto as Exhibit I.
j. A true and accurate copy of NY Boiler’s List Anonymized Employees by
Identification Numbers, transferred from a spreadsheet Defendants produced to
Plaintiffs during pre-class certification discovery, is annexed hereto as Exhibit J.
k. A true and accurate copy of the July 30, 2019 So Ordered Subpoena Duces Tucem,
along with a letter from the affirmant to Honorable W. Franc Perry, III is annexed
hereto as Exhibit K.
l. Plaintiffs’ Proposed Notice to the Class is annexed hereto as Exhibit L.
WHEREFORE, for the reasons set forth above and those set forth in the accompanying
Memorandum, Plaintiffs respectfully request that this Court issue an Order certifying this action
as a class action, and granting such other relief the Court deems just and proper.
Dated: New York, New York
April 6, 2020
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___________/s/_______________
LLOYD AMBINDER
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Preview
FILED: NEW YORK COUNTY CLERK 05/05/2020 05:15 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LANGE CAMPBELL, individually and on behalf of all Index No.: 160513/2018 other persons similarly situated, Plaintiffs, AFFIRMATION OF LLOYD - against - AMBINDER IN SUPPORT OF PLAINTIFFS’ MOTION FOR NEW YORK BOILER, INC., RICHARD BERGER and CLASS CERTIFICATION DONALD BERGER, Defendants. LLOYD AMBINDER, an attorney admitted to practice law in the State of New York, hereby affirms under the penalties of perjury that: 1. I am a partner with the firm Virginia & Ambinder, LLP, attorneys for the Named Plaintiff and the putative class in this action (“Plaintiffs”). I submit this affirmation in support of Plaintiffs’ motion for an Order pursuant to CPLR §§ 901 and 902, determining that this action may proceed as a class action on behalf of: All individuals employed by NEW YORK BOILER, INC., RICHARD BERGER and DONALD BERGER. who furnished labor to Defendants on various New York City Housing Authority and other public work projects in New York in and who performed various types of construction-related improvement work, including but not limited to boiler construction, repairs, maintenance, metal work, tube rolling and cutting, and tube bending from July 2012 through the present. The defined class shall not include any clerical, administrative, professional, or supervisory employees. 2. This action arises from the failure of Defendants NEW YORK BOILER, INC., RICHARD BERGER and DONALD BERGER (collectively “NY Boiler” or “Defendants”) to pay and/or ensure payment of the prevailing rates of wages and supplemental benefits to the Named Plaintiff and the other members of the putative class for work that they performed in furtherance of various publicly financed contracts. This action further arises from Defendants’ failure to pay Plaintiffs proper overtime compensation. 1 of 5 FILED: NEW YORK COUNTY CLERK 05/05/2020 05:15 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/05/2020 3. Plaintiffs’ counsel are experienced commercial litigators who have successfully represented classes in numerous class actions and have considerable experience in labor law cases similar to the case at bar. Examples of some of the class actions and labor law cases in which Virginia & Ambinder have represented plaintiffs include: Pesantez v. Boyle Environmental Services, Inc., 251 A.D.2d 11 (1st Dept. 1998); Dabrowski v. Abax, Inc., 84 A.D.3d 633, 634-35 (1st Dept. 2011) (“Plaintiffs’ counsel has demonstrated its expertise and zealous representation of the plaintiffs here, as well as in prior class action cases which have reached this court on appeal.”); Galdamez v. Biordi Constr. Corp., 13 Misc. 3d 1224(A) (N.Y. Sup. Ct. N.Y. Cty. 2006), Pajaczek v. Cema Constr. Corp., 18 Misc. 3d 1140(A) (N.Y. Sup. Ct. N.Y. Cty. 2008); Kudinov v. Kel-Tech Constr. Inc., 65 A.D.3d 481 (1st Dept. 2009); Ortiz v. J.P. Jack Corp., 729 N.Y.S.2d 912 (2d Dept. 2001); Cardona v Maramont Corp., 2009 N.Y. Misc. LEXIS 5010 (N.Y. Sup. Ct. N.Y. Cty. Nov. 12, 2009); Nawrocki v. Proto Constr. & Dev. Corp., 27 Misc. 3d 1211(A) (N.Y. Sup. Ct. N.Y. Cty. 2010); Morales v NAP Constr. Co., Inc., 2010 N.Y. Misc. LEXIS 3810 (N.Y. Sup. Ct. N.Y. Cty. July 2, 2010); Marshall v Roselli Moving & Stor. Corp., 2012 N.Y. Misc. LEXIS 307 (N.Y. Sup. Ct. N.Y. Cty. Jan. 23, 2012); Stecko v Three Generations Contr. Inc., 2013 N.Y. Misc. LEXIS 3035 (N.Y. Sup. Ct. N.Y. Cty. July 16, 2013); Weinstein v Jenny Craig Operations, Inc., 41 Misc. 3d 1220(A), 1220A (N.Y. Sup. Ct. 2013); Williams v Air Serve Corp., 2013 N.Y. Misc. LEXIS 2243 (N.Y. Sup. Ct. N.Y. Cty. May 23, 2013); Perez v. AC Roosevelt Food Corp., 10-cv-4824, (E.D.N.Y. May 3, 2011)(Gleeson, J.); Guzman v. VLM, Inc., 2008 U.S. Dist. LEXIS 15821 (E.D.N.Y. March 2, 2008); Velez v. Majik Cleaning Service, Inc., 2005 WL 106895 (S.D.N.Y. Jan. 18, 2005); Barone v. Safway Steel Products, Inc., 2005 WL 2009882 (E.D.N.Y. Aug. 23, 2005); 2 2 of 5 FILED: NEW YORK COUNTY CLERK 05/05/2020 05:15 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/05/2020 Brunson v. City of New York, 2000 WL 1876910 (S.D.N.Y. 2000); Brzychnalski v. UNESCO, Inc., 35 F.Supp.2d 351 (S.D.N.Y. 1999). 4. Plaintiffs submit the following exhibits in support of their motion for class certification: a. A true and accurate copy of the Summons and Complaint is annexed hereto as Exhibit A. b. A true and accurate copy of a sampling of the Public Works Contracts, produced by Defendants during pre-class certification discovery, is annexed hereto as Exhibit B. c. A true and accurate copy of a prevailing wage schedules, consisting of a sample Davis Bacon Act Prevailing Wage Schedule and a sample New York Labor Law § 220, originally annexed to the Public Works Contracts is annexed hereto as Exhibit C. d. A true and accurate sampling of Defendants’ “Forms of Proposal” for a line item bid submitted for “Boiler Welding and Repair for Various Developments Located in the Borough of Manhattan” is annexed hereto as Exhibit D. e. A true and accurate sampling of a second of Defendants’ “Forms of Proposal” for a line item bid submitted for “Boiler Welding and Repair at Various Development Located in the Borough of Brooklyn” is annexed hereto as Exhibit E. f. A true and accurate copy of NYCHA’s “Specification for Boiler Welding and Repairs at Various Developments Located in the Borough of Brooklyn” is annexed hereto as Exhibit F. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 05/05/2020 05:15 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/05/2020 g. A true and accurate copy of the affidavit of Named Plaintiff Lange Campbell, with supporting documentation, including copies of his earnings statements, NY Boiler Identification Card, and pictorial documentation is annexed hereto in a single document as Exhibit G. h. A true and accurate copy of the affidavit of putative class member Omari Rodney is annexed hereto as Exhibit H. i. A true and accurate copy of the affidavit of putative class member Vivian Clarke, with supporting documentation, including a copy of his earnings statement and pictorial documentation, is annexed hereto as Exhibit I. j. A true and accurate copy of NY Boiler’s List Anonymized Employees by Identification Numbers, transferred from a spreadsheet Defendants produced to Plaintiffs during pre-class certification discovery, is annexed hereto as Exhibit J. k. A true and accurate copy of the July 30, 2019 So Ordered Subpoena Duces Tucem, along with a letter from the affirmant to Honorable W. Franc Perry, III is annexed hereto as Exhibit K. l. Plaintiffs’ Proposed Notice to the Class is annexed hereto as Exhibit L. WHEREFORE, for the reasons set forth above and those set forth in the accompanying Memorandum, Plaintiffs respectfully request that this Court issue an Order certifying this action as a class action, and granting such other relief the Court deems just and proper. Dated: New York, New York April 6, 2020 4 4 of 5 FILED: NEW YORK COUNTY CLERK 05/05/2020 05:15 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/05/2020 ___________/s/_______________ LLOYD AMBINDER 5 5 of 5