Empire State Chapter of Associated Builders & Contractors, Inc. v. Smith

Decision Date06 July 2012
Citation2012 N.Y. Slip Op. 05456,98 A.D.3d 335,949 N.Y.S.2d 549
PartiesEMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC., County of Erie, Chris Collins, Buffalo Niagara Partnership Inc., Innovative Mechanical Systems, Inc., M.G.M. Insulation, Inc., Alleghany Industrial Insulation Co., Daniel J. Brinsky and Doug Byerly, Plaintiffs–Appellants, v. M. Patricia SMITH, in her Official Capacity as Commissioner, New York State Department of Labor, and Thomas P. DiNapoli, in his Official Capacity as Comptroller, State of New York, Defendants–Respondents.
CourtNew York Supreme Court — Appellate Division

OPINION TEXT STARTS HERE

Phillips Lytle LLP, Buffalo (Timothy W. Hoover of Counsel), for PlaintiffsAppellants.

Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for DefendantsRespondents.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

Opinion by SCONIERS, J.:

For the past 100 years, certain publicly-funded construction projects in this State having a cost that exceeds a specific monetary threshold (qualifying projects) have been subject to legislation generally known as the “Wicks Law.” The Wicks Law is comprised of a collection of statutes found, inter alia, in the General Municipal Law, State Finance Law, Public Authorities Law, Public Housing Law and Education Law. The Wicks Law requires a governmental entity contracting for a qualifying project to prepare separate bid specifications and award separate contracts for three categories of work, i.e., plumbing and gas fitting; heating, ventilating and air conditioning; and electric wiring and light fixtures ( seeGeneral Municipal Law § 101[1][a]-[c]; [2]; State Finance Law § 135; Public Authorities Law §§ 1045–i[2–a]; 1048–i[2–a]; 3303[10][c–1]; 3402[9][c–1]; 3603[9][c–1]; 3628[11][c–1]; Public Housing Law § 151–a[2–a]; Education Law § 458[2–a] ). Upon enactment of the Wicks Law in 1912, the initial monetary threshold for publicly-funded projects subject to such separate bidding requirements was $1,000 ( see L. 1912, ch. 514). The threshold increased various times untilit reached $50,000 in 1961 for projects funded by the State ( see L. 1961, ch. 292) and in 1964 for projects funded by political subdivisions of the State ( see L. 1964, ch. 572).

The $50,000 threshold remained uniform for all governmental entities until 2008, when the Legislature enacted comprehensive reforms to the Wicks Law ( see L. 2008, ch. 57, Part MM). The 2008 amendments, which went into effect on July 1, 2008 ( see L. 2008, ch. 57, Part MM, § 20), increased the monetary threshold to $3 million for the five counties comprising New York City, $1.5 million for the downstate suburban counties of Nassau, Suffolk and Westchester, and $500,000 for all other counties ( see e.g. L. 2008, ch. 57, Part MM, § 1). In addition to creating that three-tiered monetary threshold, the 2008 amendments altered the Wicks Law framework by providing a means for governmental entities to opt out of the Wicks Law's separate bidding requirements altogether. Recently-enacted Labor Law § 222, entitled “Project labor agreements,” exempts qualifying projects from those requirements provided that a project labor agreement complying with the terms of that section is in place ( seeLabor Law § 222[2][b] ).

Plaintiffs commenced this action alleging 21 causes of action challenging the 2008 amendments to the Wicks Law on the ground that those amendments violate several provisions of the New York State and Federal Constitutions, and seeking, inter alia, judgment declaring the 2008 amendments to be unconstitutional and enjoining their enforcement. Plaintiffs are: Empire State Chapter of Associated Builders and Contractors, Inc. and Buffalo Niagara Partnership Inc., professional organizations whose members are subject to the Wicks Law; Alleghany Industrial Insulation Co., a Pennsylvania construction corporation that performs work on public projects in New York, its President Daniel J. Brinsky and construction foreman Doug Byerly; M.G.M. Insulation, Inc., a minority-owned business; Innovative Mechanical Systems, Inc., a women-owned business; and the County of Erie and Chris Collins, its former County Executive. Defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(3) and (7) on the grounds that plaintiffs lack standing with respect to certain causes of action and the complaint fails to state a cause of action. Supreme Court granted the motion and dismissed the complaint (Empire State Ch. of Associated Bldrs. & Contrs., Inc. v. Smith, 30 Misc.3d 455, 915 N.Y.S.2d 903). Because plaintiffs seek declaratory relief, however, we conclude that “the proper course is not to dismiss the complaint but rather to issue a declaration in favor of the defendants ( Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334;see Matter of Penfield Tax Protest Group v. Yancey, 210 A.D.2d 901, 621 N.Y.S.2d 256,appeal dismissed85 N.Y.2d 903, 627 N.Y.S.2d 317, 650 N.E.2d 1318,lv. denied in part and dismissed in part86 N.Y.2d 760, 631 N.Y.S.2d 598, 655 N.E.2d 694). We therefore conclude that the judgment should be modified by reinstating the complaint insofar as declaratory relief was sought, and for the reasons that follow, we conclude that judgment should be granted in favor of defendants declaring that the 2008 amendments to the Wicks Law, to the extent that they are challenged by plaintiffs, are valid and constitutional.

I. Home Rule

Plaintiffs' first cause of action alleges that the 2008 amendments, insofar as they establish different monetary thresholds for the cost of public construction projects subject to the separate bidding requirements of the Wicks Law, were enacted in violation of the home rule provisions of the New York State Constitution (hereafter, Constitution) ( seeN.Y. Const., art. IX, § 2[b] ). The court concluded that plaintiffs lack standing to invoke that provision, but that, in any event, the three-tiered monetary threshold does not violate the home rule article. We agree with plaintiffs at least insofar as they contend that the County of Erie has standing to challenge the 2008 amendments under the home rule provisions of the Constitution, but we nevertheless conclude that the 2008 amendments survive that challenge.

Article IX of the Constitution grants to local governments certain “rights, powers, privileges and immunities” with respect to local matters (N.Y. Const., art. IX, § 1; see Matter of Kelley v. McGee, 57 N.Y.2d 522, 537, 457 N.Y.S.2d 434, 443 N.E.2d 908;see also City of New York v. Patrolmen's Benevolent Assn. of City of N.Y. [PBA I], 89 N.Y.2d 380, 387, 654 N.Y.S.2d 85, 676 N.E.2d 847). While a local government may not, as a general rule, challenge the constitutionality of an act of the Legislature affecting its powers, that general rule does not apply here ( see Town of Black Brook v. State of New York, 41 N.Y.2d 486, 488, 393 N.Y.S.2d 946, 362 N.E.2d 579). “Undiscriminating application of the general rule to the instant case[ ]would undermine the home rule protection afforded local governments in article IX of the Constitution, by subverting the very purpose of giving the local governments powers which the State Legislature is forbidden by the Constitution to impair or annul except as provided in the Constitution ( id.). We conclude, therefore, that the County of Erie possesses standing to challenge the 2008 amendments as an allegedly unconstitutionalimpairment of its home rule powers protected under article IX.

Plaintiffs contend that the three-tiered monetary threshold created by the 2008 amendments constitutes a special law that was enacted in violation of constitutional home rule mandates. Pursuant to article IX, section 2 of the Constitution, the Legislature possesses authority to enact general laws and special laws affecting local governments ( see Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York [PBA II], 97 N.Y.2d 378, 385, 740 N.Y.S.2d 659, 767 N.E.2d 116). A [g]eneral law” is defined in relevant part as a “law which in terms and in effect applies alike to all counties ... all cities, all towns or all villages” (N.Y. Const., art. IX, § 3[d][1] ). A [s]pecial law,” on the other hand, is defined in relevant part as a “law which in terms and in effect applies to one or more, but not all, counties, ... cities, towns or villages” (N.Y. Const., art. IX, § 3[d] [4] ). In contrast with a general law, a special law that relates to the property, affairs or government of a local government may not be enacted without a “home rule message” ( PBA II, 97 N.Y.2d at 385, 740 N.Y.S.2d 659, 767 N.E.2d 116), i.e., a “request of two-thirds of the total membership of [the municipality's] legislative body or [a] request of its chief executive officer concurred in by a majority of such membership” (N.Y. Const., art. IX, § [2] [b][2] ).

The 2008 amendments to the Wicks Law relate to the “property, affairs or government” of the County of Erie ( id.). We agree with plaintiffs, moreover, that the three-tiered monetary threshold created by the 2008 amendments constitutes a special law inasmuch as the new monetary thresholds apply differently “in terms and in effect” to the counties classified within each tier (N.Y. Const., art. IX, § 3[d][4] ). Additionally, a special law ordinarily triggers the procedural requirement of a home rule message, and none accompanied the enactment of the 2008 amendments ( see PBA I, 89 N.Y.2d at 389, 654 N.Y.S.2d 85, 676 N.E.2d 847).

Our conclusion that the provisions at issue constitute a special law, however, does not end our inquiry regarding the constitutionality of those provisions under the home rule article ( see PBA II, 97 N.Y.2d at 387–388, 740 N.Y.S.2d 659, 767 N.E.2d 116;Matter of Kelley, 57 N.Y.2d at 537, 457 N.Y.S.2d 434, 443 N.E.2d 908). As the Court of Appeals explained in PBA II:

“A recognized exception to the home rule message requirement exists when a special...

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2 cases
  • Empire State Chapter of Associated Builders v. Smith
    • United States
    • New York Court of Appeals
    • June 6, 2013
    ...by reinstating the complaint to the extent it sought declaratory relief, and declaring the 2008 legislation valid and constitutional (98 A.D.3d 335, 949 N.Y.S.2d 549 [4th Dept.2012] ). Two Appellate [970 N.Y.S.2d 727]21 N.Y.3d 315][992 N.E.2d 1070]Division Justices dissented; they agreed wi......
  • Empire State Chapter of Associated Builders v. Smith
    • United States
    • New York Court of Appeals
    • June 6, 2013
    ...by reinstating the complaint to the extent it sought declaratory relief, and declaring the 2008 legislation valid and constitutional (98 A.D.3d 335, 949 N.Y.S.2d 549 [4th Dept.2012] ). Two Appellate [970 N.Y.S.2d 727][21 N.Y.3d 315] [992 N.E.2d 1070]Division Justices dissented; they agreed ......

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