People v. Firelands Sewer & Water Const. Co.

CourtNew York Town Court
Writing for the CourtSHERWOOD L. BESTRY
Citation382 N.Y.S.2d 874,86 Misc.2d 570
Decision Date22 March 1976
Parties, 22 Wage & Hour Cas. (BNA) 1108 PEOPLE of the State of New York, Plaintiff, v. FIRELANDS SEWER AND WATER CONSTRUCTION COMPANY et al., Defendants.

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382 N.Y.S.2d 874
86 Misc.2d 570, 22 Wage & Hour Cas. (BNA) 1108
PEOPLE of the State of New York, Plaintiff,
v.
FIRELANDS SEWER AND WATER CONSTRUCTION COMPANY et al., Defendants.
Amherst Town Court, Erie County.
March 22, 1976.

Edward C. Cosgrove, Dist. Atty. of Erie County, Manuel S. Wortzman, Asst. Dist. Atty., of counsel, for plaintiff.

Brown, Maloney, Gallup, Roach & Busteed, P.C., Buffalo, Attys., Daniel Roach and Joseph V. McCarthy, Buffalo, of counsel, for defendants.

SHERWOOD L. BESTRY, Justice.

DECISION AND ORDER

The defendants herein are each charged with a violation of Section 220, Sub. 2 of the New York Labor Law, (unlawfully permitting and requiring employees to work more than eight hours in one calendar day).

Defendant move to dismiss the accusatory instruments on the various grounds hereinafter set forth.

The defendant 'Firelands' is a foreign Corporation which successfully bid and obtained a contract with the Town Board of the Town of Amherst, acting as Commissioners for several Sanitary Sewer Districts, within the Town of Amherst, for the construction

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of various segments and parts of an extremely large sewer project, which when completed will have cost approximately $138,000,000.00.

Defendant Charles H. Au is President, defendant Roger C. Au is Vice President, and defendant Mason Wheeler is Supervisor of Defendant Firelands.

The complaining witness is Leo A. Hopkins, a labor union leader who is not a resident of the Town of Amherst.

Firelands is a non-union contractor.

It is a matter of public knowledge that the various local labor unions are less than happy about a non-union contractor, a foreign corporation, having obtained the lucrative contracts.

It is further common knowledge that the various local labor unions have publicly complained about 'Firelands' causing its employees to work more than eight hours in any calendar day.

The Town of Amherst is located in Erie County, in that portion of Western New York where the unemployment rate is in excess of 14%--twice the present national unemployment rate.

It is publicly contended by the various labor unions that by having its employees work overtime, Firelands is avoiding the hiring of additional employees, thereby contributing to unemployment.

The following grounds are set forth in the Notice of Motion to dismiss.

'(1) Jurisdiction in this matter lies with an administrative agency

(2) The administrative remedies have not been exhausted

(3) The complaint is insufficient on its face

(4) The complainant lacks standing to file a complaint.'

'The defendants further move to transfer venue of this matter to another court.'

The moving affidavit alleges the following paragraph only to justify the change of venue.

'Twentieth: Since the work being performed in the Town, pursuant to a contract with the Town, the lawsuits which have resulted in which the Town was a party, the open political discussions regarding Firelands and the question of hours of work, it is submitted that it would be in the interests of justice to change the vanue of this action.'

Political discussions don't concern this court. Rules of law do. Therefore this Court summarily denies the motion for a change of venue.

With reference to the motion to dismiss, the Court will now consider grounds 1 & 2 set forth in the Notice of Motion.

New York Labor Law Section 220, Sub. 2 provides: 'Each contract to which . . . a municipal corporation . . . is a party and which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workmen or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or part of the work contemplated by the contract shall be Permitted or Required (emphasis supplied) to work more than eight hours in any one calendar day or more than five days in any one week, except . . ..'. (The exceptions are not pertinent to this decision.)

Sub. 2 of Section 220 of the Labor Law was last amended by the Laws in 1947, Chapter 851, effective April 14, 1947.

Sub. 2--a of Section 220 reads: 'Any person or corporation contracting with . . . a municipal corporation . . . that shall require more than eight hours of work for a day's labor, unless otherwise permitted by law, is guilty of a misdemeanor, and upon conviction therefore shall be punished by a Fine of not less than five hundred dollars nor...

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