| Gawez v Inter-Connection Elec., Inc. |
| 2007 NY Slip Op 08034 [44 AD3d 898] |
| October 23, 2007 |
| Appellate Division, Second Department |
| Jacek Gawez et al., Appellants, v Inter-ConnectionElectric, Inc., et al., Respondents, et al., Defendants. (And a Third-PartyAction.) |
—[*1] Coren & Associates, P.C. (Steven M. Coren, Eric Su, and Mauro Goldberg & Lilling, LLP,Great Neck, N.Y. [Caryn L. Lilling] of counsel), for respondents Inter-Connection Electric, Inc.,and Jeff Skowronski. Wolff & Samson P.C., New York, N.Y. (Jonathan Bondy and Scott J. Goldstein of counsel),for respondents First National Insurance Company of America and RLI InsuranceCompany.
In a putative class action, inter alia, to recover wages at the prevailing rate mandated byLabor Law § 220, the plaintiffs appeal, as limited by their brief, from stated portions of anorder of the Supreme Court, Kings County (Lewis, J.), dated September 13, 2005, which, amongother things, granted those branches of the cross motion of the defendants Inter-ConnectionElectric, Inc., and Jeff Skowronski which were, in effect, pursuant to CPLR 3211 (a) (1) and (7)to dismiss the causes of action insofar as asserted against them to recover wages and benefits forwork performed on certain federally-funded projects and the Luna Park Houses project, andgranted those branches of the cross motion of the defendants First National Insurance Companyof America and RLI Insurance Company which were for summary judgment dismissing thecauses of action insofar as asserted against them to recover wages and benefits for workperformed on certain federally-funded projects, the 1010 East 178th Street Development project,the New Cambria Heights Library project, and the Castle Hill Houses project.[*2]
Ordered that the order is affirmed insofar as appealedfrom, with one bill of costs.
Beginning in or about 1998, the defendants Inter-Connection Electric, Inc., and its corporatepresident, Jeff Skowronski (hereinafter collectively the contractor defendants), entered intonumerous contracts with several nonparty municipal and governmental entities to provideconstruction work on various public works projects. Four of these projects were federally funded,and the contracts for these projects contained language requiring the payment of wages andbenefits to workers which complied with the wage determination schedules promulgated by theUnited States Secretary of Labor under the provisions of the Davis-Bacon Act (40 USC §3141 et seq.). The defendants First National Insurance Company of America and RLIInsurance Company (hereinafter collectively the surety defendants) each supplied payment bondsfor the various public works contracts.
The plaintiffs Jacek Gawez, Marek Mroz, Ireneusz Kotarski, Zdzislaw Tolpa, and GrzegorzDobkowski, on their own behalf and on behalf of a putative class of individuals who furnishedlabor on the public works projects (hereinafter collectively the plaintiffs), commenced thisaction, asserting that the contractor defendants and the surety defendants failed to pay them the"prevailing wage" to which they were entitled under the Labor Law and State common law. Theplaintiffs moved to certify the class, and the contractor defendants cross-moved, inter alia, ineffect, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the causes of action insofar as assertedagainst them to recover wages and benefits for work performed on the federally-funded projectsand on the Luna Park Houses project. The surety defendants cross-moved, among other things,for summary judgment dismissing the causes of action insofar as asserted against them to recoverwages and benefits for work performed on the federally-funded projects, the 1010 East 178thStreet Development project, the New Cambria Heights Library project, and the Castle HillHouses project.
The Supreme Court properly granted those branches of the respective cross motions whichsought dismissal of the causes of action to recover wages and benefits on the federally-fundedprojects. No private right of action exists to enforce contracts requiring payment of prevailingwages pursuant to the Federal Davis-Bacon Act (see 40 USC § 3142 etseq.; Araujo v Tiano's Constr.Corp., 40 AD3d 458 [2007]; Gonzalez v D&S Zaffuto Joint Venture, 271 AD2d356 [2000]; Broder v Cablevision Sys. Corp., 418 F3d 187, 198 [2005]; Grochowskiv Phoenix Constr., 318 F3d 80 [2003]; Operating Engrs. Health & Welfare Trust Fund vJWJ Contr. Co., 135 F3d 671, 676 [1998]; Weber v Heat Control Co., 728 F2d 599[1984]; United States for Benefit & on Behalf of Glynn v Capeletti Bros., Inc., 621 F2d1309, 1317 [1980]; but see Cox v NAPConstr. Co., Inc., 40 AD3d 459 [2007]).
The Supreme Court properly granted that branch of the contractor defendants' cross motionwhich was, in effect, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the causes of actioninsofar as asserted against them to recover wages and benefits on the privately-funded Luna ParkHouses project. The contractor defendants submitted the contract between Luna Park HousingCorporation and the defendant Inter-Connection Electric, Inc., thereby conclusively establishingthat Luna Park Housing Corporation is a private entity and therefore not subject to prevailingwage guidelines (see Kupersmith vWinged Foot Golf Club, Inc., 38 AD3d 847 [2007]).
The Supreme Court properly granted that branch of the surety defendants' cross motionwhich was for summary judgment dismissing the causes of action insofar as asserted againstthem to recover wages and benefits on the 1010 East 178th Street Development project, theCastle [*3]Hill project, and the New Cambria Heights Libraryproject. The surety defendants established, as a matter of law, that none of the named plaintiffsdid any work on these projects (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]). In opposition, the plaintiffs failed to raise a triable issue of fact (id.).
The plaintiffs' remaining contentions are improperly raised for the first time on appeal orwithout merit. Lifson, J.P., Covello, Angiolillo and Dickerson, JJ., concur. [See 9 Misc3d 1107(A), 2005 NY Slip Op 51443(U) (2005).]