Ballast v. Workforce7 Inc.

Background

Victor Ballast, Luis Simone, Richard Walker, and Orlando Obret brought a putative class action against Workforce7 Inc., Consolidated Edison Company of New York, Inc. (ConEd), Vali Industries, Inc., and Ronald Hilton. The plaintiffs alleged that they worked as construction-site flaggers under contracts involving ConEd and that they were not paid required prevailing wages, overtime premiums, supplemental benefits, or wages for certain waiting, travel, and equipment-related time.

Count 10 asserted a breach-of-contract claim against ConEd and Vali Industries. The plaintiffs claimed they were third-party beneficiaries of agreements between ConEd and New York City that required payment of prevailing wages and supplemental benefits. The agreements were allegedly made during ConEd’s applications for street-opening permits. The applicable New York City provision required an applicant to agree to pay prevailing wages before a permit could issue.

Motion and Legal Standard

ConEd moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. ConEd also asked for more time to answer the plaintiffs’ remaining claims. The court accepted the complaint’s factual allegations as true for purposes of the dismissal motion and did not decide whether the plaintiffs would ultimately prevail.

Discussion

The court explained that its earlier order had dismissed with prejudice the portion of Count 10 based on the street-opening permits themselves. The plaintiffs were allowed to amend only to add facts supporting their theory that separate contractual agreements existed before the permits were issued. The court therefore considered the plaintiffs’ theory concerning the permit applications and other alleged agreements, not whether the permits themselves were contracts.

The court held that the plaintiffs plausibly alleged that ConEd entered into enforceable agreements with the New York City Department of Transportation during the permit-application process. It relied in part on the New York City Administrative Code’s requirement that an applicant agree to pay prevailing wages before a permit could be issued, as well as decisions allowing similar claims by construction-site flaggers to proceed. The court rejected ConEd’s argument that the federal pleading standard was not satisfied.

The court separately found that the plaintiffs’ catch-all theory—based on an unspecified agreement that ConEd was required to make, made, or was deemed to make with the Department of Transportation—was insufficiently pleaded because the plaintiffs did not identify what those other agreements were.

Rulings

The opinion’s opening states that ConEd’s motion to dismiss was GRANTED in part and DENIED in part. Its conclusion states that the motion to dismiss was DENIED and that Count 10 may proceed insofar as it relates to the permit applications. The court also GRANTED ConEd’s request for an extension of time to answer the remaining claims and directed ConEd to answer the third amended complaint by January 22, 2025. Judge Edgardo Ramos directed the clerk to terminate the motion.