### McMillan v Out-Look Safety LLC 2024 NY Slip Op 30336(U) January 28, 2024 Supreme Court, New York County Docket Number: Index No. 657577/2019 Judge: AndreaMasley Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024


### SUPREMECOURT OF THE STATE OF NEWYORK COUNTY OFNEWYORK: COMMERCIALDIVISIONPART

### 48

-----------------------------------------------------------------------------------X

CRAIG MCMILLIAN, EIAN MCMILLAN and VICTOR BALLAST, Plaintiffs,

- V - OUT-LOOK SAFETY LLC, RESTANI CONSTRUCTION CORP., SAFEWAYCONSTRUCTION ENTERPRISES, LLC, TRIUMPH CONSTRUCTION CORP., and ELECNOR HAWKEYE, LLC, Defendants.

-----------------------------------------------------------------------------------X HON. ANDREA MASLEY: INDEX NO. 657577/2019
MOTION DATE N/A
MOTION SEQ. NO. 005

DECISION+ORDERON MOTION

Thefollowing e-filed documents, listed by NYSCEF document number (Motion 005) 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198,199,200,201,202,203,204,205,206,207,208,209, 210,211,212,213,214,215,216,217,218,219,220,221,223,224,225,226,227,228,229,230, 231,232,233,234,235,236,237,240,254,255,256,257,258 were read 1on this motion to/for ORDER MAINTAIN CLASS ACTION In motion sequence number 005, plaintiffs Craig McMillian, Eian McMillan and Victor Ballast move to maintain the matter as a class action pursuantto CPLR 901. This is an action by construction flaggers to recover prevailing wages. 2 Plaintiffs allege claims for (i) breach ofcontract and (ii) unjust enrichment and quantum meruit against

1The court has read and where appropriate considered additional documents mentioned in the parties' papers but omitted in this autogenerated caption. The court has considered the letters filed after briefing closed onlyto the extent they contain "the citation[s] ofpost-submission court decision[s] that [are] relevant to the pending issues." (Commercial Division Rules, Rule 18; 

### see NYSCEF 230, 254,256,257, letters.)

2Specifically, plaintiffs seek "an award ofwages at the required prevailing wage rate, along with daily overtime premiums, weekend premiums, supplemental benefits

...." (NYSCEF 44, Amended Complaint [AC] at 19.) For brevity, the court will refer to the reliefsought as prevailing wages.

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

1 of 17 Page 1 of 17


### [* 1]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
defendants Out-Look Safety LLC (Out-Look), Restani Construction Corp. (Restani), Safeway Construction Enterprises, LLC (Safeway), Triumph Construction Corp. (Triumph), and Elecnor Hawkeye, LLC (Hawkeye). 3 Background According to the complaint, plaintiffs worked as flaggers for Out-Look, with whom the remaining defendants (general contractors) subcontracted to retain flagging services for construction projects in NewYork City. (See NYSCEF 44, AC

# ,m 1, 18, 31-32.) The general contractors' agreements with Consolidated Edison Company of NewYork, Inc., state and city public entities, orothercontractors (collectively, publicworks contracts) required general contractors to payworkers involved in publicworks projects prevailing wages. (See id.

# ,m 35-36.)4 Specifically, the publicworks contracts allegedly provided: "Where Contractoremploys workers on siteswhere a permit to use or open a street (including excavating the street) is required and NewYork City Administrative Code Section 19-142, or its successor ... is applicable, Contractoragrees that

... the prevailing scale of union wages shall be the prevailing wage for similartitles as established bythe Comptrollerofthe City of NewYork pursuant to Section 220 ofthe NewYork State Labor Law

... paid to

3 Restani and Triumph's counsel, whose affirmations include arguments (NYSCEF 191, Ruth Bogatyrow Kraft aff; NYSCEF 205, Michael R. Morano aff), are reminded that affidavits "are reserved for a statement ofthe relevantfacts; a statement ofthe relevant law and arguments belong in a brief(i.e., a memorandum of law)." (Tripp 

### & Co., Inc. v BankofNY(Del), Inc., 28 Misc 3d 1211[A], 2010 NY Slip Op 51274[U], *6 [Sup Ct, NY County 2010], citing 22 NYCRR 202.8 [c].) Counsel are reminded that (i) every citation to the record in motion papers must include a corresponding NYSCEF number (Part 48 Procedure 5 [A]) and (ii) deposition transcripts shall be submitted in their entiretywith relevant portions highlighted and in mini-scriptformat. (Part 48 Procedure 5 [D].)

4 Several defendants stipulated that relevant publicworks contracts required the payment ofprevailing wages pursuant to NewYork CityAdministrative Code Section 19-142 and Labor Law§ 220. (NYSCEF 164, Triumph stip 

### ,i,i 4-5; NYSCEF 165, Hawkeye stip

### ,i,i 1-3; NYSCEF 167, Safewaystip 

### ,i,i 2-4.)

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Page 2of 17 Motion No. 005

2 of 17 

### [* 2]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
those so employed, and Contractorshall paythat prevailing wage to workers so employed." 

### (/d.,I37.) In the breach ofcontract claim, plaintiffs allege that as third-party beneficiaries of the publicworks contracts, theywere entitled to prevailing wages but have not been paid accordingly. (See id. 

### ,I,I 80-81.) In the unjust enrichment and quantum meruit claim, plaintiffs allege that defendants failed to paythem the prevailing wage rates for prevailing wagejobs and thus have been unjustly enriched. (Id. 

### ,I 84.) They also allege that defendants failed to paythe reasonable value of plaintiffs' services and thus plaintiffs are entitled to relief underthe doctrine ofquantum meruit. (Id. 

### ,I 89.) Discussion CPLR 901 (a), which "should be broadly construed" (City

### ofNYvMaul, 14 NY3d 499, 509 [201

### O] [internal quotation marks and citation omitted]), provides that a class action may be maintained if: "1. the class is so numerous thatjoinder ofall members, whetherotherwise required or permitted, is impracticable; 2. there are questions of laworfact common to the class which predominate overany questions affecting only individual members; 3. the claims or defenses ofthe representative parties are typical ofthe claims ordefenses ofthe class; 4. the representative parties will fairly and adequately protect the interests ofthe class; and 5. a class action is superiorto otheravailable methodsfor the fair and efficient adjudication ofthe controversy." "Once these prerequisites are satisfied, the court must considerthe factors set out in CPLR 902" (Ackerman vPrice Waterhouse, 252 AD2d 179, 191 [1st Dept 1998]): "1. the interest ofmembers ofthe class in individually controlling the prosecution or defense ofseparate actions; 2. the impracticabilityor inefficiency of prosecuting or defending separate actions; 3. the extent and nature ofany litigation concerning the controversy already commenced by oragainst members ofthe class; 4. the desirability or undesirability ofconcentrating the litigation of the claim in the particularforum; [and] 5. the difficulties likelyto be encountered in the management ofa class action." 657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

3 of 17 Page 3 of 17


### [* 3]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
(CPLR 902.) The plaintiff must establish by competent evidence the requirements set forth in CPLR 901 and 902 for obtaining class certification. 5 (SeeAckerman, 252 AD2d at 191.) "The determination ofwhether or not a matterqualifies as a class action

... rests within the sound discretion ofthe motion court." (Rabouin vMetro. Life Ins. Co., 25 AD3d 349, 350 [1st Dept 2006].) 1. CPLR 901 6 Numerosity "There is no mechanical test to determinewhether

... numerosity

... has been met, nor is there a set rule for the numberofprospective class members which must exist before a class is certified

.... Each case depends upon the particular circumstances surrounding the proposed class and the court should considerthe reasonable inferences and commonsense assumptions from the facts before it." (Globe Surgical Supplyv GEICO Ins. Co., 59 AD3d 129, 137-38 [2d Dept 2008] [internal quotation marks and citations omitted].) Here, plaintiffs have identified 75 Out-Lookemployees who worked at the general contractors' projects. (NYSCEF 179, class list at 1-3.7) Plaintiffs submit a

5 Contrary to defendants' assertation (NYSCEF 213, Out-Look & Safeway memo at 10 [NYSCEF pagination]), NewYork law does not require that CPRL 901 (a) prerequisites be met by the preponderance ofthe evidence. (See BanasiakvFoxIndus., Ltd., 2016 NY Misc LEXIS 962, 2016 NY Slip Op 30501 [U], *3 [Sup Ct, NY County 2016] [rejecting application ofmore stringent evidentiarystandard at class certification stage as is found in Federal Rules ofCivil Procedure rule 23].) Instead, the preponderance ofthe evidence standard is applied by federal courts. (See In re Petrobras Sec., 862 F3d 250, 260 [2d Cir 2017].)

6The court rejects Hawkeye's request for an evidentiary hearing (NYSCEF 214, Hawkeye memo at 20 n 7 [NYSCEF pagination]) as the parties submitted evidence in support oftheir arguments including party deposition transcripts and defendants' stipulation. (Cf. Chimenti vAm. Express Co., 97 AD2d 351, 352 [1st Dept 1983] ["It was an abuse ofdiscretion to certifythe class solely on the basis ofthe pleadings and the [conclusory] affidavit by plaintiff's counsel"].)

7 Brent E. Pelton, plaintiffs' counsel, states that plaintiffs compiled the list based on Restani sign in sheets, Out-Look's internal Smartsheets system and timesheets, and

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Page 4 of 17 Motion No. 005

4 of 17 

### [* 4]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024 deposition transcriptwhere Paul Tantillo8 testified that Out-Look's employees have not been paid prevailing wages. (NYSCEF 154, Tantillo depo at 51 :6-18.) Plaintiffs have demonstrated a class of75 employees, whosejoinderwould be impracticable and thus the numericity prerequisite is met. (See Pesantez vBoyle Envtl. Servs., Inc., 251 AD2d 11, 11-12 [1st Dept 1998] [class of80 workers]; Dabrowski vAbaxInc., 84 AD3d 633, 634 [1st Dept 2011] [class of50 to 100 laborers].) Defendants argue that plaintiffs' evidence is insufficientto meetthe numericity requirement because plaintiffs have not identified each class member but instead aggregates across entities that contracted with Out-Lookand without demonstrating difficulty ofjoinder ofeach class member. However, defendants proffer no authority to support their proposition that the numerosity requirement is defendant specific. Instead, courts routinely analyze whether a class is numerous in the context ofan entire action, not per defendant. (See e.g. Juarez v USA Roofing Co. Corp., 2017 NY Misc LEXIS 2246, 2017 NY Slip Op 31239[U], *9 [Sup Ct, NY County2017] [analyzing numericity in context ofan entire action byworkers to collect prevailing wages where defendants
were two subcontractors and five general contractors]; Ansoumana v Gristede's Operating Corp., 201 FRO 81, 85-86 [SD NY 2001] [same, except defendantswere several labor agencies and their clients who used plaintiffs' deliveryservices].)

August 2020 email discussion between Restani and Out-Look. (NYSCEF 148, Pelton aff

### ,i 39.) The underlying records follow the list. (NYSCEF 179, class list at 4-42.)

8Tantillo was the corporate representative for Out-Look. (NYSCEF 148, Pelton aff

### ,i 14.)

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

5 of 17 Page 5of 17


### [* 5]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
Defendants next argue that the numericity prerequisite is not met because there is no evidence that plaintiffs and the class members, byvirtue oftheirjob duties, were flaggers entitled to prevailing wages. Pursuant to Labor Law§ 220, the NewYork City Comptrollersets prevailing wage schedules and trade classifications on publicworks projects within NewYork city. (See Labor Law§ 220 [3] [c], [5] [e]). "The Comptroller's prior interpretations ofwhat specific types offlagger dutieswere entitled to prevailing wages under Labor Law§ 220
were neither irrational nor unreasonable, and we therefore deferto those interpretations." (Herman vJud/au Contr., Inc., 204 AD3d 496, 496 [1st Dept 2022] [citations omitted].) "'When the worker assigned to those duties is not on a construction worksite, and is being utilized to alleviate vehicular congestion by directing the flow of street traffic awayfrom the vicinity ofthe construction site, that worker is performing traffic control duty. Accordingly, the worker does notfall within the purview of Labor [Law] Section 220. However, when aworker is utilized adjacent to, or in close proximityto the construction worksite, protecting the public from the inherent dangers on and about that site, safeguarding the work crewfrom street traffic, directing publictraffic awayfrom the site, and directing the movement ofconstruction equipment in, on, and offthe site, thatworker is performing flagging duties which fall within thejob specifications ofthe construction laborer."' (Little v Carlo Lizza 

### & Sons Paving, Inc., 2017 US Dist LEXIS 86712, *12 [SD NY, June 6, 2017], quoting May21, 1998 letterfrom Bureau of Labor Lawto Director Mayor's Office ofConstruction) "'This memo is being issued for purposes ofclarification. When aworker is assigned as a full-time "flag person" and his/her duties are not primarily on a construction worksite, but such person is primarily assigned to alleviate vehicular congestion by directing the flow ofthe street traffic awayfrom the vicinity ofthe construction site, the worker is performing traffic control duty. Accordinglythe workerdoes not fall within the purview of Labor Law Section 220
... However, when aworker is utilized on the construction worksite, protecting the public from the inherent dangers on and about that site, safeguarding the work crewfrom the street traffic, and directing the movement ofconstruction equipment in, on, and 657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

6 of 17 Page 6 of 17


### [* 6]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
offthe site, that worker is performing flagging duties which fall within thejob description of laborer."' (Id., quoting Comptroller's Prevailing Wage Memorandum, March 13, 2001.) Whether plaintiffs and the class members performed "flagging dutieswhich fall within thejob description of laborer" and were entitled to prevailing wages is a contested issue which the courtwill not resolve on a class certification motion. However, at this stage, plaintiffs have provided sufficient evidence tending to showthat they performed flagging duties that might fall within thejob description offlagger. (See NYSCEF 150, C. McMillian depo at 109:21-110:17, 113:19-114:11, 115:5-8 [work included putting cones, making sure that no cars are entering construction site, making sure that cones directing where trucks back up are in correct spots, and sometimes digging dirtwith shovel]; NYSCEF 151, E. McMillan depo at 218:6-17, 393:19-22, 394:15-20 [work included helping set up and take down equipment, making sure thatvehicles do not enter construction site and that construction equipment makes it safely into and out of construction zone]; NYSCEF 152, Ballast depo at 226:23-228:23 [work included escorting machinery up and down streets, being in worksite, sweeping, shoveling, putting blacktar on metal tops].) Plaintiffs' evidence shows that the class members also performed flagging duties that mightfall within thejob description of laborer. (See NYSCEF 154, Tantillo depo at 25:18-26:13 [Out-Look's employees were senttojob sites to directtraffic and maintain construction flow oftraffic around job site].) Any evidence suggesting that plaintiffs and the class members performed duties that do not fall within the flagger'sjob description raises an issue offact and does not prevent class certification. Indeed, a class certification motion "is not intended to be a substitute for

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

7 of 17 Page 7 of 17


### [* 7]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
summaryjudgment ortrial." (/sufi vPrometal Constr., Inc., 161 AD3d 623, 624 [1st Dept 2018] [citation omitted].) Finally, because plaintiffs proffered sufficient evidence to demonstrate numerosity, defendants' reliance on FedervStaten Is. Hosp., 304 AD2d 470, 471 [1st Dept 2003] is misplaced. (Id. ["mere fact that the defendants process thousands of requests for medical records everyyear is speculative, and thus, insufficientto establish" numerosity ofclass ofcustomers who were charged fees in violation of Public Health Law].) Commonality/ Predominance "When individualized proof is required forthe claims alleged or individual factual questions with respect to individual class members preponderate, commonality is lacking." (Pludeman vN. Leasing Sys., Inc., 74 AD3d 420, 422-23 [1st Dept 2010] [citations omitted].) "However, the rule requires predominance not identity or unanimity among class members

.... Thus, commonality is not merely an inquiry into whether common issues outnumber individual issues but ratherwhetherthe use ofa class action would achieve economies oftime, effort, and expense, and promote uniformity of decision as to persons similarlysituated." (Id. [internal quotation marks and citations omitted].) Plaintiffs have met the commonality prerequisite. In this action, one common issue offact predominates, namely, "did defendants utilize these workers in roles that would have entitled them to prevailing wages or did they perform purelytraffic control as defined by the Comptroller?" (Moran vJLJ IVEnters., Inc., 2020 NY Misc LEXIS 2799, 2020 NY Slip Op 31924[U], *7 [Sup Ct, NY County 2020]; see also Lewis vHal/en Constr. Co., Inc., 193 AD3d 511, 512 [1st Dept 2021] ["commonality and typicality are established by the fact that all the claims arise from defendant's alleged failure to pay

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

8 of 17 Page 8 of 17


### [* 8]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024 prevailing wages" (citations omitted)]; Stecko vRLI Ins. Co., 121 AD3d 542, 543 [1st Dept 2014] ["The commonality prerequisite is met since all members ofthe class allege that defendant

... failed to paythe required prevailing wage and supplemental benefits owed to them" (citation omitted)].) Defendants argue that because the courtwould need to engage in individual analysis to determine each class member's specific duties and the amount oftime the laborerworked as such, individual issues would predominate. The court disagrees. "Certainly, the tasks that each individual flagger might have been required to perform might differ at each site, but the overarching questions are similar enough to warrant class certification." (Moran, 2020 NY Slip Op 31924[U], *7.) Although this matter may ultimately involve individual issues ofproof, the issues subject to generalized proof predominate. (See Borden v400

### E. 55th St. Assoc., L.P., 105 AD3d 630, 631 [1st Dept 2013] ["The need to conduct individualized damages inquiries does not obviate the utility ofthe class mechanism forthis action, given the predominant
common issues of liability" (citations omitted)]; Moses v Consol. Edison Co. ofNew York, Inc., 2023 WL 2734331, at *5 [SD NY, Mar. 31, 2023, No. 18-CV-1200 (ALC)] ["The necessity ofdetermining how much each flaggerworked in no morethan two roles will not take an inordinate amount oftime, norwill it distractfrom the common issues"].)
Typicality Plaintiffs' claims are typical ofthose ofthe class because the claims derive from the same alleged practice ofdepriving workers of prevailing wages and are based on the same legal theories. (C.H. v Columbia Grammar

### & PreparatorySch., 204 AD3d

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

9 of 17 Page 9 of 17


### [* 9]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024 601, 601 [1st Dept 2022] [plaintiff's claims "are typical ofthose in the class

... ifthey derive[] from the same practice or course ofconduct that gave rise to the remaining claims ofotherclass members and [are] based upon the same legal theory" [internal quotation marks and citation omitted].) Even ifgeneral contractors employed differentsupervision and control practices,
as defendants argue, these practices are not at issue. Rather, at issue are the pay practices and class members'job duties. Forthat reason, the court is not persuaded by Hawkeye's argument that because each plaintiffworked at Hawkeye's projects only
once ortwice, plaintiffs' claims are nottypical. 9 AdequacyofRepresentation "A class representative acts as principal to the other class members and owes them a fiduciary dutyto vigorously protect their interests." (Rochesterv Chiarella, 65 NY2d 92, 100 [1985] [citations omitted].) "The factors to be considered in determining adequacy ofrepresentation are whetherany conflict exists between the representative and the class members, the representative's familiaritywith the lawsuit and his or her financial resources, and the competence and experience ofclass counsel." (Ackerman, 252 AD2d at 202 [citations omitted].) Plaintiffs' claims are typical ofthose ofthe class, and thus plaintiffs and the class members share a common goal in this litigation. Undersuch circumstances, there is no conflict of interest. (Griffith v W. 171 Assoc., LP, 2019 NY Misc LEXIS 558, 2019 NY Slip Op 30322[U], *7-8 [Sup Ct, NY County 2019] [holding that no conflict of interest

9Tantillo testified that Hawkeye is one ofOut-Looks largest clients. (NYSCEF 154, Tantillo depo at 39:7-16.) Accordingly, at this stage, the court rejects Hawkeye's argument that it is not a proper defendant.

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Page 10 of17 Motion No. 005

10 of 17 

### [* 10]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
existed where named plaintiffs' claims were typical ofthose ofclass and they shared
common goal].) The mere fact that Ballast is a plaintiff in a prevailing wage class action in federal court10 is insufficientto show any conflict. Further, plaintiffs have demonstrated familiaritywith the lawsuit in their deposition testimony. Their litigation costs are advanced. (See NYSCEF 148, Pelton aff

### ,i 6.) Finally, there is no doubt as to the competence and experience ofthe class counsel. (See id. 

### ,i,i 2-8 [discussing Pelton Graham LLC's extensive experiencewith wage-and-hour litigation].) The court rejects defendants' argument that Ballast and E. McMillan's criminal convictions11 make them inappropriate representatives. (SeeAdams vBigsbee Enterprises, Inc., 53 Misc 3d 1210(A) [Sup Ct, NY County 2015] ["Courts that have disallowed prospective plaintiffs on the basis ofprior convictions have done so only where a clear nexus existed between the conviction and the class claims

... orwhere the criminal conduct bears directly on the proposed representative's honesty, credibility and integrity" (internal quotation marks and citations omitted)].) However, because C. McMillian's conviction offraud in the first degree for cashing a bad check casts doubt on his honesty and credibility, he is not an adequate representative. (NYSCEF 193, C. McMillian depo at 17:1-10, 19:24-20:8; see Pena v TaylorFarms Pac., Inc., 305 FRO 197, 216 [ED Cal 2015] [individual convicted of identitytheftwas not adequate class representative].)

10 Ballast v Workforcel Inc., Index No. 20-cv-3812 (SD NY).

11 Ballast testified that he was convicted ofpossession with intent distribute ofa controlled substance in 1989 and offelony possession ofa firearm in 1998 or 1999 (NYSCEF 208, Ballast depo at 22:6-13, 24:2-5.) E. McMillan testified that he was convicted ofdisorderly conduct. (NYSCEF 211, E. McMillan depo at 19:9-22.)

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

11 of 17 Page 11 of17


### [* 11]NYSCEF DOC. NO. 270 Superiority INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024

The court finds that plaintiffs have made an adequate showing ofsuperiority underthe particularfacts and circumstances ofthis action. Indeed, "a class action is the superiorvehicle for resolving wage disputes since the damages allegedlysuffered by an individual class member are likelyto be insignificant, and the costs ofprosecuting individual actions would result in the class members having no realistic day in court." (Lewis, 193 AD3d at 512 [internal quotation marks and citations omitted].) 2. CPLR 902 The CPLR 902 factors weigh in favor ofclass certification. There is no indication that the class members have any interest in individually controlling the prosecution of separate claims. Although the parties identifythree otherongoing prevailing wage matters in which plaintiffs' counsel is involved, 12 plaintiffs' counsel avers that "[n]one of [these] matters have defendants in common with the present matter, excepting the Hal/en matter, in which Out-Look Safety LLC is a defendant" and that "[n]one ofthe groups ofplaintiffs in any of [these three] matters overlap with the proposed class in the present matter." (NYSCEF 226, Pelton aff

# ,m 2-5.) Finally, given that the class members worked on worksites in NewYork city, litigation in this forum is desirable. 3. Class Definition Plaintiffs seekto maintain the class of "all persons employed by Out-Look Safety LLC at anytime sinceApril 16, 2018 through the presentwhoworked as non-union construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects requiring

12 Moses v ConsolidatedEdison CompanyofNew York, Index No. 18-cv-1200 (SD NY), Ballast v Workforcel Inc., Index No. 20-cv-3812 (SD NY), and Brown v The Hal/en Construction Co., Index. No. 657160/2021 (Sup Ct, NY County).

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

12 of 17 Page 12of17


### [* 12]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
the payment ofprevailing wages in NewYork City." (NYSCEF 145, notice ofmotion.) 13 Defendants argue that plaintiffs propose an impermissible fail-safe class definition because it refers to flaggers. A proposed class may not be a fail-safe class, that is, one "whose membership
can only be ascertained by a determination ofthe merits ofthe case because the class is defined in terms ofthe ultimate question of liability." (Hicks v 

### T.L. Cannon Corp., 35 F Supp 3d 329, 356 [WO NY 2014] [internal quotation marks and citation omitted].) A failsafe class is improper because it "shields the putative class members from receiving an adversejudgment." (Hardgers-Powe/1 vAngels in YourHome LLC, 330 FRO 89, 101 [WO NY 2019] [citation omitted].) The court disagreesthat the reference to flaggers in the class definition is impermissible. The question of liability turns on interalia whether plaintiffs and the class members were "performing flagging duties which fall within thejob description of laborer." (Little, 2017 US Dist LEXIS 86712, *12, quoting Comptroller's Prevailing Wage Memorandum, March 13, 2001.) Indeed, "the pivotal question is not howdefendant characterized [the class members], but whetherthe nature ofthe workthey actually performed required payment ofprevailing wages." (Herman, 204 AD3d at 496.) The court finds unpersuasive defendants' attack on the proposed class definition to the extent that the definition includes any person who was (i) employed by Out-Look since April 16, 2018 through the present, (ii) working at a specificjobwith a specific general contractor, and (iii) not memberofa labor union. No ultimate finding on the

13 Plaintiffs state that they have chosen April 16, 2018 as a cutoffdate because Outlook's initial corporatefiling was made April 16, 2018. (NYSCEF 147, plaintiffs' memo at11n1.)

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

13 of 17 Page 13of17


### [* 13]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
merits is required to ascertain membership in a class so defined. Indeed, similar class definitions have been approved. (Moran, 2020 NY Slip Op 31924[U], *8 [Sup Ct, NY County] [class of"all non-union employees

...who worked as flaggers, flagpersons, and/or pedestrian crossing guards on anyof (defendant's) publicworksites in NewYork City at any point between January 1, 2014 and February 8, 2019"]; Herman, Index No. 652249/2017, NYSCEF 84, Orderat 2 [class of "all persons employed by Defendant or subcontracted by Defendant

...at anytime from April 26, 2011 through the present who worked as non-union flaggers on publicworks projects in the State on NewYork"].) However, whetherthe publicworks contracts required the payment of prevailing wages on subject projects is among the ultimate issues of liability. Accordingly, the court amends class definition as follows: "all persons employed by Out-Look Safety LLC at anytime since April 16, 2018, through the January28, 2024, who worked as nonunion construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects." (Henix vLiveonny, Inc., 2019 NY Misc LEXIS 2680, 2019 NY Slip Op 31444[U], *13 [Sup Ct, NY County2019] ["court may exercise its discretion to amend the class definition"]) 4. Merits On a class certification motion the court considers the merits onlyto ensure that "on the surface there appears to be a cause ofaction which is not a sham." (Pludeman, 74 AD3d at 422.) Atthis stage, analysis ofmerits "is not intended to be a substitute for summaryjudgment ortrial." (KudinovvKel-Tech Constr. Inc., 65 AD3d 481,482 [1st Dept 2009].) The court again rejects defendants' argumentthat by nature oftheirjob duties, plaintiffs were not entitled to prevailing wages and thus their claims are meritless. At

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

14 of 17 Page 14of17


### [* 14]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024
this stage, plaintiffs have sufficiently demonstrated that plaintiffs and the class members performed flagger duties that mightfall within the relevantjob description. (See supra at 6-8.) Defendants next contend the breach ofcontract claim is meritless because plaintiffs and the class members are not general contractors' employees and thus are not third-party beneficiaries ofthe public work contracts, which require the payment of prevailing wages. The court disagrees. "[T]he employees ofthe subcontractor are third-party beneficiaries ofthe prevailing wage promise in the prime contract and should be permitted to allege that the general contractor breached that obligation." (Wrobel v ShawEnvtl. 

### & Infrastructure Eng'g ofNY, P.C., 56 Misc 3d 798, 805 [Sup Ct, NY County 2017] [denying motion to dismiss breach ofcontract claim, which was asserted by subcontractors' employees against prime contractor and based on prime contract's

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

15 of 17 Page 15of17


### [* 15]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024 prevailing wage clause], affd 166 AD3d 520 [1st Dept 2018].) 14 Thus, plaintiffs' breach ofcontract claim is not asham

.15 The court has considered all otherarguments made by all parties and finds that they do not change the outcome. Accordingly, it is ORDERED plaintiffs motion is granted, to the extent that that plaintiffs' claims in the amended complaint are certified as a CPLR 901 class action on behalfofa class defined as: all persons employed by Out-Look Safety LLC at anytime since April 16, 2018, through January28, 2024, who worked as non-union construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects; and it is further ORDERED that Victor Ballast and Eian McMillan are certified as class representatives; and it is further ORDERED that Pelton Graham LLC is appointed class counsel; and it is further ORDERED that class counsel shall amend Notice of Pendency ofClass Action (NYSCEF 184) in accordance with this decision and submit it for the court's approval

14 In Barragan-Aquino v

### E. Pot1 Excavation 

### & Util. Contractors, Inc., 2014 WL 1117269, *8 (ED NY, Mar. 18, 2014, No. 13-CV-343 [SJF] [ARL]), the court held that subcontractor' employees did not have the right, as third-party beneficiaries, to sue the general contractorfor unpaid prevailing wages underthe prime contract. However, this court "concludes thatthe better-reasoned authority is that ofthe NewYorkstate courts, which, as far as this Court has been able to determine, have uniformly allowed the employees ofsubcontractors on NewYork public works projects to assert third-partybeneficiary claims against the general contractorfor breach of its contractual obligation, as mandated by Section 220 ofthe NYLL, to ensure the payment ofprevailing wages to all workers on the project." (So/auk vEur. CopperSpecialties, Inc., 2019 US Dist LEXIS 81267, *30 [SD NY, May 2, 2019, No. 14-cv-8954 (OF)].)
15The issue ofwhether general contractorsjointly employed plaintiffs and the class members need not be addressed at this time because even absent employment relationships, plaintiffs' claims are not a sham. (Wrobel, 56 Misc 3d at 805.) Similarly, at this stage, the court need not address the issue ofwhetherjoint and several liability ofdefendants' is sufficiently supported by the record.

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Page 16of17 Motion No. 005

16 of 17 

### [* 16]NYSCEF DOC. NO. 270 INDEX NO. 657577/2019 RECEIVED NYSCEF: 01/28/2024 (via NYSCEF and email to SFC-PART48@nycourts.gov) within 7 days ofthe date of this decision; 16 and it is further ORDERED that defendants shall provide to plaintiffs via email the names, addresses, phone numbers, and email addresses ofall potential class memberswho worked as aflaggerfrom April 16, 2018, through January28, 2024, within 20 days of this decision in MicrosoftWord or Microsoft Excel format; and it is further ORDERED that plaintiffs' requestfor defendantsto disclose social security numbersforthose class memberswhose Notices ofPendency ofClass Action are returned as undeliverablewithout aforwarding address is denied, and plaintiffs may requestthe courtto reconsider ifand when anysuch notices are so returned and the parties cannot agree to a remedy; and it is further ORDERED that class members may exclude themselves from the class by sending a written requestto class counsel within 30 daysfrom mailing ofthe Notice of PendencyofClassAction.

1/28/2024

DATE CHECKONE:
APPLICATION: CHECKIF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ANDREA MASLEY, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARYAPPOINTMENT

### □ OTHER**□** REFERENCE

16 Defendants' requested amendmentsto the Notice ofPendency ofClassAction are rejected as they are likelyto confuse class members. Specifically, defendants request thatthe notice state that "[d]efendants claim the crossing guards sole dutywas alleviating vehicular congestion bydirecting the flow ofstreettraffic awayfrom the vicinity ofthe construction site, which is traffic control duty, and thattheir dutieswere noton a construction site and therefore the Plaintiffs are not owed anywages and this action should not proceed as a class action" and warns that putative plaintiffs "may be liable for attorneys' fees ifthe action is dismissed or [p]laintiffs lose attrial." (NYSCEF 213, Out-Look& Safeway memo at 30.)

657577/2019 MCMILLIAN, CRAIG vs. OUT-LOOKSAFETY LLC Motion No. 005

17 of 17 Page 17of 17


### [* 17]