| Winsch v Esposito Bldg. Specialty, Inc. |
| 2008 NY Slip Op 01336 [48 AD3d 558] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Vincent Winsch, Appellant, v Esposito Building Specialty,Inc., Respondent. (And a Third-Party Action.) |
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In an action, inter alia, to recover damages for violation of Labor Law § 220, theplaintiff appeals from an order of the Supreme Court, Suffolk County (Jones, J.), datedNovember 16, 2006, which denied his motion for summary judgment on the issue of liabilityand, upon searching the record, awarded summary judgment in favor of the defendant dismissingthe complaint.
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff seeks damages from the defendant based upon its alleged failure to pay himprevailing wages for work which he allegedly performed on various "public works" constructionprojects (Labor Law § 220). However, "no private right of action for the underpayment ofwages exists under Labor Law § 220 until an administrative determination in theemployee's favor has been made and has gone unreviewed or has been affirmed" (Marren v Ludlam, 14 AD3d 667,669 [2005]; see Labor Law § 220 [7], [7-a], [8]; Pesantez v Boyle Envtl.Servs., 251 AD2d 11, 12 [1998]; Matter of Pyramid Co. of Onondaga v Hudacs, 193AD2d 924 [1993]). Here, as the plaintiff concedes, the Supreme Court, upon searching therecord, properly awarded summary judgment to the defendant dismissing the first cause of action,which was predicated upon the defendant's alleged failure to pay prevailing wages under LaborLaw § 220, since there is no proof that any administrative determination has beenrendered.
The Supreme Court, upon searching the record, also properly awarded summary judgment tothe defendant dismissing the remaining causes of action sounding in breach of contract, quantum[*2]meruit, unjust enrichment, and willful failure to pay wages.The complaint failed to identify the provisions of the contracts which allegedly were breached, orotherwise provide "the court and [the] parties notice of the transactions, occurrences, or series oftransactions or occurrences, intended to be proved" (CPLR 3013; see Atkinson v Mobil OilCorp., 205 AD2d 719, 720 [1994]). Moreover, the parties' submissions established, as amatter of law, that the plaintiff had no cause of action sounding in breach of contract, quantummeruit, or unjust enrichment. Summary judgment dismissing the remaining cause of action, torecover damages for the defendant's alleged willful failure to pay wages, was also properlyawarded to the defendant, since such a cause of action is only viable if the plaintiff "prevails" onhis wage claim (see Labor Law § 198).
The plaintiff's remaining contentions are without merit or concern matter which is dehors therecord. Rivera, J.P., Santucci, Covello and Balkin, JJ., concur.