New York State Court of Claims

New York State Court of Claims

FOUR SILVER STAR v. THE STATE OF NEW YORK, #2001-019-544, Claim No. 103644, Motion No. M-63097


State's motion to dismiss for failure to state a cause of action granted since claim is premature.

Case Information

FOUR SILVER STAR PAINTING CORP. The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
LAW OFFICES OF ROBERT M. ZISKINBY: Stacey E. Ziskin, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Arthur Patane, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves to dismiss this Claim pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Claimant opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed January 9, 2001.
  2. Notice of Motion No. M-63097, dated February 13, 2001, and filed February 15, 2001.
  3. Affidavit of Dennis R. Wilson, in support of motion, sworn to February 13, 2001.
  4. Affirmation of Stacey E. Ziskin, Esq., in opposition to motion, dated February 16, 2001, and filed February 28, 2001.
  5. Affidavit of Bobbi Jo Tavenner, in opposition to motion, sworn to February 21, 2001, and filed February 28, 2001.
  6. State's Memorandum of Law, in support of motion, dated May 7, 2001.
  7. Claimant's Memorandum of Law, in opposition to motion, dated May 16, 2001.
In or about June of 1999, Claimant entered into a contract with the State Department of Transportation to paint and perform other work on various bridges in Delaware County (hereinafter "Project"). Claimant employed approximately 25 individuals in connection with this Project, 15 as painters/blasters and 10 as laborers. Claimant paid the laborers at the rates prescribed for laborers in connection with duties such as hanging cable, erecting platforms, etc., whereas those individuals performing more traditional painting duties were paid at the prevailing wage rate for painters. On October 27, 2000, the State Department of Labor, Bureau of Public Work, issued a "Notice to Department of Jurisdiction to Withhold/Release Payment" (hereinafter "Notice") to the State Department of Transportation in its capacity as owner under this Project to withhold from "any payments due, or to become due" the sum of $267,721.00. (Notice, Attachment to Claim). The parties appear to agree that this Notice was issued due to Claimant's failure to pay each employee on this Project at the prevailing wage rate for painters.

This Claim alleges theories of liability including negligence, negligent performance of a contractual duty,[1] and breach of contract. The essence of Claimant's position is that the State's liability rests in its failure to precisely set forth in the contract that all individuals on this Project were to be paid at the prevailing wage rates for painters regardless of the type of work performed. Claimant seeks damages in the amount of $198,255.00, plus legal fees of $1,998.33, for a total of $200,243.33.[2]

The State's sole argument for dismissal is that this Claim is premature because the contract is not substantially complete nor has final payment been demanded or refused. The Court agrees. On a motion to dismiss pursuant to CPLR 3211 (a) (7):
[t]he pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]....In assessing a motion under CPLR 3211 (a) (7)...'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' [citation omitted].

(Leon v Martinez, 84 NY2d 83, 87-88). Further, it is well-settled that "[t]he general rule in public construction contract cases is that the claim accrues when final payment is issued (see Mergentime Corp. v State of New York, 152 AD2d 659; Forest-Fehlhaber v State of New York, 74 AD2d 272)." (Sevenson Envtl. Servs. v New York State Thruway Auth., 149 Misc 2d 268, 275). Claimant concedes that final payment has not been demanded or paid, but rather insists that this claim accrued at the time that damages became ascertainable, namely upon the issuance of said Notice.[3] In this Court's view, this Claim is premature since Claimant has not suffered any loss until such time as the State makes final payment in an amount less than the contracted price. Consequently, the State's dismissal motion on the grounds of prematurity is granted.

Parenthetically, the Court questions whether Claimant even possesses a private cause of action in the first instance. This Court's independent research has located no authority which authorizes a private cause of action pursuant to Labor Law 220 et seq by a contractor, such as Claimant, against an owner, here the State, based upon the owner's failure to specify the applicability of the prevailing wage schedule. Rather, to the contrary, the Court of Appeals has stated:
[a] private cause of action, which would have the effect of making the public entity financially responsible for the underpayment, is contrary to the unmistakable aim of the entire enforcement scheme to place all liability for violating the prevailing wage requirements upon the noncomplying contractor.

(Hoxie's Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207, 213; see also, Sarbro IX v State of New York Off. of Gen. Servs., 229 AD2d 910; Armco Drainage & Metal Prods. v. State of New York, 4 AD2d 366 [remedy is review under Article 78]; Sevenson Envtl. Servs v New York State Thruway Auth., supra, 149 Misc 2d 268). In any event, the Court does not reach this issue on the merits.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-63097, is GRANTED and Claim No.103644 is DISMISSED.

July 9, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The Court notes that there is no cause of action for negligent performance of a contract. (Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 226 AD2d 990, 993).
[2]The discrepancy between the amount of damages sought herein ($200,243.33) as compared to the amount ordered to be withheld in the Notice ($267,721.00), appears to be attributable to a previous amount withheld under the same case number.
[3]The issuance of said Notice may, however, have triggered Claimant's time to commence any available administrative remedy it was obligated to pursue.