New York State Court of Claims

New York State Court of Claims

FOUR SILVER STAR v. THE STATE OF NEW YORK, #2003-019-566, Claim No. 105736, Motion Nos. M-67048, CM-67319


State's cross-motion for summary judgment dismissing cause of action based on Labor Law 220-d is granted; and claim is dismissed. Claimant's motion for summary judgment is denied.

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, of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Arthur Patane, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 29, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for summary judgment pursuant to CPLR 3212. The defendant State of New York (hereinafter "State") opposes the motion and cross-moves for summary judgment pursuant to CPLR 3212 as well.

This claim arises from a contract between claimant and defendant for painting and other work on various bridges on Routes 17 and 30 in Delaware County known as the Delaware County Bridge Project (hereinafter "Project") that began in June 1999. The essence of the claim contends that the State failed to expressly advise claimant that all employees on this Project had to be paid the prevailing wage rates for painters, even though many tasks could be and were performed by laborers. (Notice of Claim [sic], ¶ 4). Claimant alleges that since it was never informed by the State of this requirement various tasks were assigned to individuals employed and paid as laborers rather than painters. (Notice of Claim [sic], ¶ 5). Thereafter, the New York State Department of Labor Bureau of Public Work (hereinafter "Labor Bureau") instituted an action based upon claimant's failure to pay approximately ten individuals as painters.[1] The Labor Bureau also issued three separate Notices to Withhold Payment on said Project against claimant as follows: (1) on October 27, 2000 in the amount of $267,721.00; (2) on August 10, 2001 in the amount of $502,548.00; and (3) on February 22, 2002 in the amount of $57,924.43. (Notice of Claim [sic], exhibits thereto).

Claimant seeks damages herein resulting from the State's failure to notify it that all employees on this Project were to be paid as painters, not laborers, citing Labor Law 220-d as authority for a private cause of action. Claimant concedes that it paid these ten employees the requisite prevailing wage rate for laborers, not painters. However, claimant argues, as outlined in its moving papers, that many of the Project documents can be construed to have affirmatively permitted the use of laborers or at least to have misled claimant into believing that a laborer classification was proper such as the Contract Proposal and Special Note thereto that included job classifications and prevailing wage rates for laborers, together with the submission of Applications for Dispensation for Hours that included laborers and were never rejected. The State does not address these documents in its papers.

The facts outlined above are not in dispute. Given these undisputed facts, both parties agree the issues presented are matters of law ripe for resolution on this motion and cross-motion for summary judgment.

The sole question presented here and briefed by the parties is whether the State's failure to notify claimant of the requirement that all employees on this Project were to be paid the prevailing wage rate for painters, not laborers, gives rise to a private cause of action under Labor Law 220-d. This court finds that it does not for the reasons set forth herein.

Article 8 of the Labor Law provides that all contractors and subcontractors working on a public works contract are required to pay their employees "not less than the prevailing rate of wages". (Labor Law 220 [3]). Claimant does not dispute this statutory scheme, but alleges that the State failed to comply with the statutory notice requirements of Labor Law 220-d which in turn gives rise to a valid private cause of action on claimant's behalf. Labor Law 220-d states, in part, as follows:
[t]he advertised specifications for every contract for the construction, reconstruction, maintenance and/or repair of public work to which the a party shall contain a provision stating the minimum hourly rate of wage which can be paid and the minimum supplement that can be provided, as shall be designated by the [commissioner of labor], to the laborers, workingmen or mechanics employed in the performance of the contract...and the contract shall contain a stipulation that such laborers, workingmen or mechanics shall be paid not less than such hourly minimum rate of wage and provided supplements not less than the prevailing supplements.

The Court of Appeals has specifically addressed the question of whether Labor Law 220-d permits a private cause of action and has found that it does not. (Hoxie's Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207). Hoxie's involved a suit by a contractor against a school district in relation to advertising specifications that contained no notice of the prevailing wage requirements. As a result of said omission the contractor's bid was based on its customary pay rate. Thereafter, the Labor Bureau ordered additional monies withheld to cover the difference between the customary pay rate and the prevailing wage rate. Plaintiff commenced an action, as here, alleging that the school district's failure to give proper notice per Labor Law 220-d was the cause of its damages. Upon review, the Court of Appeals in Hoxie's determined as follows:
[a] private cause of action would be incompatible with both the means chosen by the Legislature to enforce article 8 and with the basic purposes underlying the statute. Article 8 authorizes the Department of Labor to direct payment of prevailing wages or supplements found to be due...and provides civil and criminal penalties for willful violators of Department orders.... 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.
The overriding purpose of section 220-d, intimately tied to that of article 8 as a whole, is set forth in the legislative history. The notice requirements of that section were added to "facilitate the work of the Department [of Labor] in relation to such public works contracts and in addition to set a known and acceptable minimum rate of wage to be paid workers on such type of work, that will help to remove the source of strife and certain evils in connection with the carrying on of such contracts" (Dept of Labor, Mem in support, Bill Jacket, L 1934, ch 747 [emphasis added]). To permit the recovery sought by plaintiff would run counter to that basic legislative goal. It would reward a contractor which underpays its employees in violation of section 220 and would, in effect, permit such contract to amend its bid after completion of the contract at no expense to itself, but to the public entity for which the work was done [citations omitted].
Further, such shifting of the burden from the contractor to the public entity would directly contravene the basic objectives of the competitive bidding process "to assure the prudent and economical use of public moneys" and "to facilitate the acquisition of facilities and commodities of maximum quality at the lowest possible cost" (General Municipal Law § 100-a [emphasis added]).

(Hoxie's, 76 NY2d at 212-213).

In sum, the Court of Appeals has unequivocally held that no private cause of action exists under Labor Law 220-d.

Additionally, the court notes that although claimant focuses its argument on the State's failure to properly advertise specifications under Labor Law 220-d, it also appears to be objecting to the classification by the Labor Bureau of these specific employees as laborers, not painters, in light of their job duties. It is well-settled that the determination of the proper classification of trades and occupations and correct prevailing wage rates is within the expertise of the Labor Bureau which should not be disturbed in the absence of a clear showing that a class does not reflect the true nature of the work actually performed. (Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279, 283, lv dismissed 79 NY2d 1039, lv denied 80 NY2d 756, cert denied 507 US 972). Review of that administrative determination is available by way of a CPLR Article 78 proceeding in the Appellate Division. (Labor Law 220 [8]; 220-b [2] [e]). In fact, the Appellate Division's review is limited to whether substantial evidence in the record supports the administrative determination regarding classification of trades and occupations and correct prevailing wage rates. (Matter of TPK Constr. Corp. v Hudacs, 205 AD2d 894, 896). As such, the Court of Claims does not have jurisdiction to review an administrative action since its jurisdiction is limited to awarding damages in tort and contract claims and any review of this matter would necessarily involve a review of the propriety of the Labor Bureau's job classifications in the first instance. (Lantry v State of New York, Ct Cl., June 28, 2001, Read, P.J., Claim Nos. 102258, 102455, Motion No. M-62951, Cross-Motion No. CM-63167 [UID No. 2001-001-027]).[2] Furthermore, any delay in the holding of said administrative hearing is a matter that must be addressed by way of a CPLR article 78 proceeding to compel the hearings. (Matter of Nalews, Inc. v New York State Environmental Facilities Corp., 79 AD2d 829, 831, lv dismissed 53 NY2d 940; Matter of Pav-Lak Contr. v McGowan, 184 Misc 2d 386, 390; Palmer Constr. v Hines, 154 Misc 2d 248, 250).

Nevertheless, claimant attempts to circumvent the holding in Hoxie's and related case law by emphasizing the nature of this claim as a breach of contract and in reliance upon Sarbro IX v State of New York Off. of Gen. Servs., 229 AD2d 910, and Sevenson Envtl. Servs. v New York State Thruway Auth., 149 Misc 2d 268. Initially, the court notes that claimant's own characterization of this action does not dictate whether the Court of Claims has subject matter jurisdiction, but rather the court must view "the actual issues presented." (Sidoti v State of New York, 115 AD2d 202, 203; Matter of Gross v Perales, 72 NY2d 231, 236). With respect to claimant's attempts to rely on Sarbro and Sevenson, the court finds such reliance misplaced. In Sarbro, the Fourth Department affirmed the trial court's dismissal of the breach of contract cause of action and tort claim which specifically alleged, as here, that the defendant failed to clarify the applicability of the prevailing wage schedule, and merely agreed that the Court of Claims has subject matter jurisdiction over causes of action seeking money damages based on equitable considerations. In Sevenson, which did not involve a Labor Law 220 claim, the trial court found that the claimant had stated a cause of action because the State had no contractual right to withhold money from the claimant. Here, as noted by the State, the Labor Bureau's withholdings were made pursuant to statutory authority of Labor Law 220 et seq. (Affidavit of Arthur Patane, sworn to October 9, 2003, ¶ 7). In sum, this court finds that neither Sevenson nor Sarbro alter in any way the holding in Hoxie's.

Accordingly, in light of the foregoing, it is ordered that claimant's motion for summary judgment, Motion No. M-67048, is DENIED; the State's cross-motion for summary judgment, Motion No. CM-67319, is GRANTED; and Claim No. 105736 is DISMISSED

October 29, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with these motions:
  1. Claim, filed March 12, 2002.
  2. Notice of Motion No. M-67048, dated June 25, 2003, and filed July 2, 2003.
  3. Affidavit of Bobbi Jo Tavenner, in support of motion, sworn to June 20, 2003, with attached exhibits.
  4. Memorandum of Law in support of motion, dated June 25, 2003.
  5. Notice of Cross-Motion No. CM-67319, dated and filed August 27, 2003.
  6. Affidavit of Arthur Patane, AAG, in support of cross-motion, sworn to August 27, 2003, with attached exhibits.
  7. Affidavit of John E. Loughlin, in support of cross-motion, sworn to August 25, 2003.
  8. Reply Affirmation of Stacey E. Ziskin, Esq., in support of motion and in opposition to cross-motion, dated September 16, 2003, and filed September 19, 2003, with attached exhibits.
  9. Affidavit of Arthur Patane, AAG, in further support of cross-motion, sworn to and filed October 9, 2003.

The Department of Labor, through the Bureau of Public Works, investigates these matters, and may issue a notice to withhold payment, assess interest and a civil penalty pending a final determination of the matter. (Labor Law 220-b [2] [a] [1]). Any contractor aggrieved by such determination is entitled to an administrative hearing. (Labor Law 220 [8]); 220-b [2] [c]).
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