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: Andrea Masley

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(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 

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48 

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

CRAIG MCMILLIAN, EIAN MCMILLAN and VICTOR 

BALLAST, 

Plaintiffs, 

- V -

OUT-LOOK SAFETY LLC, RESTANI CONSTRUCTION 

CORP., SAFEWAY CONSTRUCTION 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+ ORDER ON 

MOTION 

The following 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 1 on 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 pursuant to CPLR 901. 

This is an action by construction flaggers to recover prevailing wages. 2 Plaintiffs allege 

claims for (i) breach of contract and (ii) unjust enrichment and quantum meruit against 

1 The 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 only to the extent they contain "the 

citation[s] of post-submission court decision[s] that [are] relevant to the pending issues." 

(Commercial Division Rules, Rule 18; see NYSCEF 230, 254,256,257, letters.) 

2 Specifically, plaintiffs seek "an award of wages 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 

relief sought as prevailing wages. 

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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 New York City. (See NYSCEF 44, AC ,m 1, 18, 31-32.) The 

general contractors' agreements with Consolidated Edison Company of New York, Inc., 

state and city public entities, or other contractors (collectively, public works contracts) 

required general contractors to pay workers involved in public works projects prevailing 

wages. (See id. ,m 35-36.) 4 Specifically, the public works contracts allegedly provided: 

"Where Contractor employs workers on sites where a permit to use or open a 

street (including excavating the street) is required and New York City 

Administrative Code Section 19-142, or its successor ... is applicable, 

Contractor agrees that ... the prevailing scale of union wages shall be the 

prevailing wage for similar titles as established by the Comptroller of the City of 

New York pursuant to Section 220 of the New York 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 of the relevant facts; a statement of the relevant 

law and arguments belong in a brief (i.e., a memorandum of law)." (Tripp & Co., Inc. v 

Bank of NY(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 entirety with relevant portions highlighted and in 

mini-script format. (Part 48 Procedure 5 [D].) 

4 Several defendants stipulated that relevant public works contracts required the 

payment of prevailing wages pursuant to New York City Administrative 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, Safeway stip ,i,i 2-4.) 

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those so employed, and Contractor shall pay that prevailing wage to workers so 

employed." 

(/d.,I37.) 

In the breach of contract claim, plaintiffs allege that as third-party beneficiaries of 

the public works contracts, they were 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 pay them the prevailing wage rates for 

prevailing wage jobs and thus have been unjustly enriched. (Id. ,I 84.) They also allege 

that defendants failed to pay the reasonable value of plaintiffs' services and thus 

plaintiffs are entitled to relief under the doctrine of quantum meruit. (Id. ,I 89.) 

Discussion 

CPLR 901 (a), which "should be broadly construed" (City of NYv Maul, 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 that joinder of all members, whether otherwise 

required or permitted, is impracticable; 2. there are questions of law or fact 

common to the class which predominate over any questions affecting only 

individual members; 3. the claims or defenses of the representative parties are 

typical of the claims or defenses of the class; 4. the representative parties will 

fairly and adequately protect the interests of the class; and 5. a class action is 

superior to other available methods for the fair and efficient adjudication of the 

controversy." 

"Once these prerequisites are satisfied, the court must consider the factors set 

out in CPLR 902" (Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1st Dept 1998]): 

"1. the interest of members of the class in individually controlling the prosecution 

or defense of separate actions; 2. the impracticability or inefficiency of 

prosecuting or defending separate actions; 3. the extent and nature of any 

litigation concerning the controversy already commenced by or against members 

of the class; 4. the desirability or undesirability of concentrating the litigation of 

the claim in the particular forum; [and] 5. the difficulties likely to be encountered 

in the management of a class action." 

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(CPLR 902.) The plaintiff must establish by competent evidence the requirements set 

forth in CPLR 901 and 902 for obtaining class certification. 5 (See Ackerman, 252 AD2d 

at 191.) "The determination of whether or not a matter qualifies as a class action ... 

rests within the sound discretion of the motion court." (Rabouin v Metro. Life Ins. Co., 

25 AD3d 349, 350 [1st Dept 2006].) 

1. CPLR 901 6 

Numerosity 

"There is no mechanical test to determine whether ... numerosity ... has been 

met, nor is there a set rule for the number of prospective 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 consider the 

reasonable inferences and commonsense assumptions from the facts before it." 

( Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129, 137-38 [2d Dept 2008] [internal 

quotation marks and citations omitted].) 

Here, plaintiffs have identified 75 Out-Look employees 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]), New York law does not require that CPRL 901 (a) prerequisites 

be met by the preponderance of the evidence. ( See Banasiak v Fox Indus., Ltd., 2016 

NY Misc LEXIS 962, 2016 NY Slip Op 30501 [U], *3 [Sup Ct, NY County 2016] [rejecting 

application of more stringent evidentiary standard at class certification stage as is found 

in Federal Rules of Civil Procedure rule 23].) Instead, the preponderance of the 

evidence standard is applied by federal courts. (See In re Petrobras Sec., 862 F3d 250, 

260 [2d Cir 2017].) 

6 The 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 of their arguments including party deposition transcripts and defendants' 

stipulation. (Cf. Chimenti v Am. Express Co., 97 AD2d 351, 352 [1st Dept 1983] ["It was 

an abuse of discretion to certify the class solely on the basis of the 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 

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deposition transcript where 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 of 75 employees, whose joinder would be impracticable and thus 

the numericity prerequisite is met. (See Pesantez v Boyle Envtl. Servs., Inc., 251 AD2d 

11, 11-12 [1st Dept 1998] [class of 80 workers]; Dabrowski v Abax Inc., 84 AD3d 633, 

634 [1st Dept 2011] [class of 50 to 100 laborers].) 

Defendants argue that plaintiffs' evidence is insufficient to meet the numericity 

requirement because plaintiffs have not identified each class member but instead 

aggregates across entities that contracted with Out-Look and without demonstrating 

difficulty of joinder of each 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 of an 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 County 2017] [analyzing numericity in 

context of an entire action by workers 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 defendants were 

several labor agencies and their clients who used plaintiffs' delivery services].) 

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.) 

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

14.) 

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Defendants next argue that the numericity prerequisite is not met because there 

is no evidence that plaintiffs and the class members, by virtue of their job duties, were 

flaggers entitled to prevailing wages. 

Pursuant to Labor Law§ 220, the New York City Comptroller sets prevailing 

wage schedules and trade classifications on public works projects within New York city. 

( See Labor Law§ 220 [3] [c], [5] [e]). "The Comptroller's prior interpretations of what 

specific types of flagger duties were entitled to prevailing wages under Labor Law§ 220 

were neither irrational nor unreasonable, and we therefore defer to those 

interpretations." (Herman v Jud/au Contr., Inc., 204 AD3d 496, 496 [1st Dept 2022] 

[ citations omitted].) 

"'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 construction 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 adjacent 

to, or in close proximity to the construction work site, protecting the public from 

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."' 

(Little v Carlo Lizza & Sons Paving, Inc., 2017 US Dist LEXIS 86712, *12 [SD NY, June 

6, 2017], quoting May 21, 1998 letter from Bureau of Labor Law to Director Mayor's 

Office of Construction) 

"'This memo is being issued for purposes of clarification. When a worker is 

assigned as a full-time "flag person" and his/her duties are not primarily on a 

construction work site, but such person is primarily assigned to alleviate vehicular 

congestion by directing the flow of the street traffic away from the vicinity of the 

construction site, the 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 the construction work site, protecting the public from 

the inherent dangers on and about that site, safeguarding the work crew from the 

street traffic, and directing the movement of construction equipment in, on, and 

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off the site, that worker is performing flagging duties which fall within the job 

description of laborer."' 

(Id., quoting Comptroller's Prevailing Wage Memorandum, March 13, 2001.) 

Whether plaintiffs and the class members performed "flagging duties which fall 

within the job description of laborer" and were entitled to prevailing wages is a contested 

issue which the court will not resolve on a class certification motion. However, at this 

stage, plaintiffs have provided sufficient evidence tending to show that they performed 

flagging duties that might fall within the job description of flagger. (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 dirt with 

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 that vehicles 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 black tar on metal tops].) Plaintiffs' evidence shows that the class members also 

performed flagging duties that might fall within the job description of laborer. (See 

NYSCEF 154, Tantillo depo at 25:18-26:13 [Out-Look's employees were sent to job 

sites to direct traffic and maintain construction flow of traffic around job site].) Any 

evidence suggesting that plaintiffs and the class members performed duties that do not 

fall within the flagger's job description raises an issue of fact and does not prevent class 

certification. Indeed, a class certification motion "is not intended to be a substitute for 

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summary judgment or trial." (/sufi v Prometal Constr., Inc., 161 AD3d 623, 624 [1st 

Dept 2018] [citation omitted].) 

Finally, because plaintiffs proffered sufficient evidence to demonstrate 

numerosity, defendants' reliance on Feder v Staten Is. Hosp., 304 AD2d 470, 471 [1st 

Dept 2003] is misplaced. (Id. ["mere fact that the defendants process thousands of 

requests for medical records every year is speculative, and thus, insufficient to 

establish" numerosity of class of customers who were charged fees in violation of Public 

Health Law].) 

Commonality/ Predominance 

"When individualized proof is required for the claims alleged or individual factual 

questions with respect to individual class members preponderate, commonality is 

lacking." (Pludeman v N. 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 rather whether the use of a class action 

would achieve economies of time, effort, and expense, and promote uniformity of 

decision as to persons similarly situated." 

(Id. [internal quotation marks and citations omitted].) 

Plaintiffs have met the commonality prerequisite. In this action, one common 

issue of fact predominates, namely, "did defendants utilize these workers in roles that 

would have entitled them to prevailing wages or did they perform purely traffic control as 

defined by the Comptroller?" (Moran v JLJ IV Enters., Inc., 2020 NY Misc LEXIS 2799, 

2020 NY Slip Op 31924[U], *7 [Sup Ct, NY County 2020]; see also Lewis v Hal/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 

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prevailing wages" (citations omitted)]; Stecko v RLI Ins. Co., 121 AD3d 542, 543 [1st 

Dept 2014] ["The commonality prerequisite is met since all members of the class allege 

that defendant ... failed to pay the required prevailing wage and supplemental benefits 

owed to them" (citation omitted)].) 

Defendants argue that because the court would need to engage in individual 

analysis to determine each class member's specific duties and the amount of time the 

laborer worked 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 of proof, 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 of the class mechanism for this action, given the predominant 

common issues of liability" (citations omitted)]; Moses v Consol. Edison Co. of New 

York, Inc., 2023 WL 2734331, at *5 [SD NY, Mar. 31, 2023, No. 18-CV-1200 (ALC)] 

["The necessity of determining how much each flagger worked in no more than two 

roles will not take an inordinate amount of time, nor will it distract from the common 

issues"].) 

Typicality 

Plaintiffs' claims are typical of those of the class because the claims derive from 

the same alleged practice of depriving workers of prevailing wages and are based on 

the same legal theories. ( C.H. v Columbia Grammar & Preparatory Sch., 204 AD3d 

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601, 601 [1st Dept 2022] [plaintiff's claims "are typical of those in the class ... if they 

derive[] from the same practice or course of conduct that gave rise to the remaining 

claims of other class members and [are] based upon the same legal theory" [internal 

quotation marks and citation omitted].) 

Even if general contractors employed different supervision and control practices, 

as defendants argue, these practices are not at issue. Rather, at issue are the pay 

practices and class members' job duties. For that reason, the court is not persuaded by 

Hawkeye's argument that because each plaintiff worked at Hawkeye's projects only 

once or twice, plaintiffs' claims are not typical. 9 

Adequacy of Representation 

"A class representative acts as principal to the other class members and owes 

them a fiduciary duty to vigorously protect their interests." (Rochester v Chiarella, 65 

NY2d 92, 100 [1985] [citations omitted].) "The factors to be considered in determining 

adequacy of representation are whether any conflict exists between the representative 

and the class members, the representative's familiarity with the lawsuit and his or her 

financial resources, and the competence and experience of class counsel." (Ackerman, 

252 AD2d at 202 [citations omitted].) 

Plaintiffs' claims are typical of those of the class, and thus plaintiffs and the class 

members share a common goal in this litigation. Under such 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 

9 Tantillo testified that Hawkeye is one of Out-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. 

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existed where named plaintiffs' claims were typical of those of class and they shared 

common goal].) The mere fact that Ballast is a plaintiff in a prevailing wage class action 

in federal court10 is insufficient to show any conflict. Further, plaintiffs have 

demonstrated familiarity with 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 of the class counsel. ( See id. ,i,i 2-8 [discussing Pelton 

Graham LLC's extensive experience with wage-and-hour litigation].) 

The court rejects defendants' argument that Ballast and E. McMillan's criminal 

convictions11 make them inappropriate representatives. ( See Adams v Bigsbee 

Enterprises, Inc., 53 Misc 3d 1210(A) [Sup Ct, NY County 2015] ["Courts that have 

disallowed prospective plaintiffs on the basis of prior convictions have done so only 

where a clear nexus existed between the conviction and the class claims ... or where 

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 of fraud 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 Taylor Farms Pac., Inc., 305 FRO 

197, 216 [ED Cal 2015] [individual convicted of identity theft was not adequate class 

representative].) 

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

11 Ballast testified that he was convicted of possession with intent distribute of a 

controlled substance in 1989 and of felony possession of a firearm in 1998 or 1999 

(NYSCEF 208, Ballast depo at 22:6-13, 24:2-5.) E. McMillan testified that he was 

convicted of disorderly conduct. (NYSCEF 211, E. McMillan depo at 19:9-22.) 

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The court finds that plaintiffs have made an adequate showing of superiority 

under the particular facts and circumstances of this action. Indeed, "a class action is 

the superior vehicle for resolving wage disputes since the damages allegedly suffered 

by an individual class member are likely to be insignificant, and the costs of prosecuting 

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 of class certification. There is no indication 

that the class members have any interest in individually controlling the prosecution of 

separate claims. Although the parties identify three other ongoing 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 of the 

groups of plaintiffs 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 New York city, litigation in this forum is desirable. 

3. Class Definition 

Plaintiffs seek to maintain the class of "all persons employed by Out-Look Safety 

LLC at any time since April 16, 2018 through the present who worked as non-union 

construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects requiring 

12 Moses v Consolidated Edison Company of New 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). 

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the payment of prevailing wages in New York City." (NYSCEF 145, notice of motion.) 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 of the merits of the case because the class 

is defined in terms of the 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 

adverse judgment." (Hardgers-Powe/1 v Angels in Your Home LLC, 330 FRO 89, 101 

[WO NY 2019] [citation omitted].) 

The court disagrees that the reference to flaggers in the class definition is 

impermissible. The question of liability turns on inter alia whether plaintiffs and the 

class members were "performing flagging duties which fall within the job 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 how defendant 

characterized [the class members], but whether the nature of the work they actually 

performed required payment of prevailing 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 specific job with a specific 

general contractor, and (iii) not member of a labor union. No ultimate finding on the 

13 Plaintiffs state that they have chosen April 16, 2018 as a cutoff date because Outlook's initial corporate filing was made April 16, 2018. (NYSCEF 147, plaintiffs' memo 

at11n1.) 

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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 any of (defendant's) public work sites in New York 

City at any point between January 1, 2014 and February 8, 2019"]; Herman, Index No. 

652249/2017, NYSCEF 84, Order at 2 [class of "all persons employed by Defendant or 

subcontracted 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 on New York"].) 

However, whether the public works 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 any time since April 16, 2018, through the January 28, 2024, who worked as nonunion construction flaggers on Restani, Safeway, Triumph and/or Hawkeye projects." 

(Henix v Liveonny, Inc., 2019 NY Misc LEXIS 2680, 2019 NY Slip Op 31444[U], *13 

[Sup Ct, NY County 2019] ["court may exercise its discretion to amend the class 

definition"]) 

4. Merits 

On a class certification motion the court considers the merits only to ensure that 

"on the surface there appears to be a cause of action which is not a sham." (Pludeman, 

74 AD3d at 422.) At this stage, analysis of merits "is not intended to be a substitute for 

summary judgment or trial." (Kudinov v Kel-Tech Constr. Inc., 65 AD3d 481,482 [1st 

Dept 2009].) 

The court again rejects defendants' argument that by nature of their job duties, 

plaintiffs were not entitled to prevailing wages and thus their claims are meritless. At 

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this stage, plaintiffs have sufficiently demonstrated that plaintiffs and the class members 

performed flagger duties that might fall within the relevant job description. (See supra at 

6-8.) 

Defendants next contend the breach of contract claim is meritless because 

plaintiffs and the class members are not general contractors' employees and thus are 

not third-party beneficiaries of the public work contracts, which require the payment of 

prevailing wages. The court disagrees. "[T]he employees of the subcontractor are 

third-party beneficiaries of the prevailing wage promise in the prime contract and should 

be permitted to allege that the general contractor breached that obligation." (Wrobel v 

Shaw Envtl. & Infrastructure Eng'g of NY, P.C., 56 Misc 3d 798, 805 [Sup Ct, NY 

County 2017] [denying motion to dismiss breach of contract claim, which was asserted 

by subcontractors' employees against prime contractor and based on prime contract's 

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prevailing wage clause], affd 166 AD3d 520 [1st Dept 2018].) 14 Thus, plaintiffs' breach 

of contract claim is not a sham .15 

The court has considered all other arguments 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 behalf of a class 

defined as: all persons employed by Out-Look Safety LLC at any time since April 16, 

2018, through January 28, 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 of Class 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 contractor for unpaid prevailing wages under the prime contract. However, this 

court "concludes that the better-reasoned authority is that of the New York state courts, 

which, as far as this Court has been able to determine, have uniformly allowed the 

employees of subcontractors on New York public works projects to assert third-partybeneficiary claims against the general contractor for breach of its contractual obligation, 

as mandated by Section 220 of the NYLL, to ensure the payment of prevailing wages to 

all workers on the project." (So/auk v Eur. Copper Specialties, Inc., 2019 US Dist LEXIS 

81267, *30 [SD NY, May 2, 2019, No. 14-cv-8954 (OF)].) 

15 The issue of whether general contractors jointly 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 of whether joint and several liability 

of defendants' is sufficiently supported by the record. 

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(via NYSCEF and email to SFC-PART48@nycourts.gov) within 7 days of the 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 of all potential class members who 

worked as a flagger from April 16, 2018, through January 28, 2024, within 20 days of 

this decision in Microsoft Word or Microsoft Excel format; and it is further 

ORDERED that plaintiffs' request for defendants to disclose social security 

numbers for those class members whose Notices of Pendency of Class Action are 

returned as undeliverable without a forwarding address is denied, and plaintiffs may 

request the court to reconsider if and when any such 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 request to class counsel within 30 days from mailing of the Notice of 

Pendency of Class Action. 

1/28/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

ANDREA MASLEY, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

16 Defendants' requested amendments to the Notice of Pendency of Class Action are 

rejected as they are likely to confuse class members. Specifically, defendants request 

that the notice state that "[d]efendants claim the crossing guards sole duty was 

alleviating vehicular congestion by directing the flow of street traffic away from the 

vicinity of the construction site, which is traffic control duty, and that their duties were 

not on a construction site and therefore the Plaintiffs are not owed any wages and this 

action should not proceed as a class action" and warns that putative plaintiffs "may be 

liable for attorneys' fees if the action is dismissed or [p]laintiffs lose at trial." (NYSCEF 

213, Out-Look & Safeway memo at 30.) 

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