147 Misc.2d 857, L.K. Comstock & Co., Inc. v. Koch

Citation147 Misc.2d 857, 555 N.Y.S.2d 1019
Party NameL.K. Comstock & Co., Inc. v. Koch
Case DateApril 06, 1990

Page 857

147 Misc.2d 857

555 N.Y.S.2d 1019

L.K. COMSTOCK & COMPANY, INC., Plaintiff,

v.

Edward I. KOCH, as Mayor of the City of New York; Oliver J.

Gray, as Director of the Bureau of Labor Services of the

City of New York; City of New York; Public Development

Corporation; Seaport Marketplace, Inc.; the Rouse Company; and Tishman Construction Corporation of New York, Defendants.

SEAPORT MARKETPLACE, INC., Defendant and Third-Party Plaintiff

v.

ABCO-PEERLESS SPRINKLER CORP., Alumex, Inc., Del Turco Bros.

Inc., Domenick's Iron Works, Inc., Donaldson Acoustics Co.,

Inc., Oxhandler Structural Enterprises, Inc., Mosher Steel,

P & M Sorbara Construction Ltd., Aragus Construction Corp.,

Third-Party Defendants.

MOSHER STEEL, Third-Party Defendant and Fourth-Party Plaintiff,

v.

AMERICAN STEEL ERECTORS, INC., Fourth-Party Defendant.

Supreme Court of New York, IAS Part 23.

April 6, 1990.

Page 858

[555 N.Y.S.2d 1020] Mazur, Carp & Barnett, P.C., New York City, for plaintiff.

Lewis S. Finkelman, Asst. Corp. Counsel, New York City, for defendants.

Bruce Rothschild, Corwin & Solomon, New York City, for defendant/third party plaintiff Seaport Marketplace, Inc.

Fisher & Fisher, Brooklyn, for third party defendant/fourth party plaintiff Mosher Steel.

LEONARD N. COHEN, Justice:

The City defendants (the "City") move for leave to renew and reargue this court's decision dated September 22, 1989 (N.Y.L.J. 9/28/89, p. 23 col. 2).

The underlying facts, taken from the court's prior decision, are as follows: The Mayor issued Executive Order No. 50 ("E.O. 50") effective April 25, 1980. Subsequently, regulations to implement E.O. 50 were promulgated by the Bureau of Labor

Page 859

Services of the City of New York ("BLS") effective January 21, 1982 and the BLS was given the responsibility to monitor compliance with E.O. 50. Section 7 of E.O. 50 entitled "Training Programs" provides "[c]ontracting agencies shall require contractors to make a good faith effort to achieve the ratio of one trainee to four journey-level employees of each craft on each construction project." Section 3(j) defines a trainee as "an economically disadvantaged person who qualifies for and receives training in one of the construction trades pursuant to a program other than apprenticeship programs ..." Under Section 3(g), an economically disadvantaged person means "a person who, or a member of a family which, is considered economically disadvantaged under applicable law."

In or about December, 1981, the City entered into certain agreements with Seaport Marketplace, Inc. ("Seaport") as general contractor, covering construction and renovation work at the South Street Seaport (the "project"). The agreements between the City and Seaport provided that Seaport would comply with and cause each subcontractor to comply with all provisions of E.O. 50.

In September 1983, Seaport entered into a subcontract with plaintiff in which plaintiff agreed to perform certain electrical work on the project. Their agreement, as well as the agreements between Seaport and the other subcontractors herein, provided that the subcontractor would comply with E.O. 50. Following completion of the project, the Public Development Association deducted the sum of $396,822.27 from its payment to Seaport on the ground that various subcontractors had failed to comply with the trainee provisions of E.O. 50. Included in this deduction is $179,732.00 attributable to plaintiff.

On December 23, 1987, plaintiff commenced the underlying action for a judgment declaring, inter alia, that E.O. 50 is void and unenforceable and that the City defendants are not entitled to withhold $179,732.00 from it. Plaintiff also seeks a permanent injunction against the City defendants preventing them from enforcing E.O. 50 and the regulations thereunder to the extent that requirements are imposed for the hiring of trainees by construction contractors on projects involving City contracting agencies.

Plaintiff previously moved for an order granting summary judgment against the City declaring the trainee provisions of E.O. 50 void and unenforceable and enjoining the City from enforcing those provisions. Seaport cross-moved for summary

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judgment based on plaintiff's motion requesting alternative relief depending on the court's disposition of...

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