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.
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.
FOUR SILVER STAR
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
LAW OFFICES OF ROBERT M. ZISKINBY: Stacey E. Ziskin, of counsel
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Arthur Patane, Assistant Attorney General, of counsel
October 29, 2003
See also (multicaptioned
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.
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 ). 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 state...is
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
(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
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 ; 220-b  [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
, 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.
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,
53 NY2d 940; Matter of Pav-Lak Contr. v McGowan
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
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The Court has considered the following papers in connection with these
Claim, filed March 12, 2002.
Notice of Motion No. M-67048, dated June 25, 2003, and filed July 2,
Affidavit of Bobbi Jo Tavenner, in support of motion, sworn to June 20, 2003,
with attached exhibits.
Memorandum of Law in support of motion, dated June 25, 2003.
Notice of Cross-Motion No. CM-67319, dated and filed August 27, 2003.
Affidavit of Arthur Patane, AAG, in support of cross-motion, sworn to August
27, 2003, with attached exhibits.
Affidavit of John E. Loughlin, in support of cross-motion, sworn to August 25,
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.
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  [a]
). Any contractor aggrieved by such determination is entitled to an
administrative hearing. (Labor Law 220 ); 220-b  [c]).
Unreported decisions from the Court of Claims are available via the Internet at