Sarkisian Bros., Inc. v. Hartnett
| Decision Date | 04 April 1991 |
| Citation | 568 N.Y.S.2d 190,172 A.D.2d 895 |
| Court | New York Supreme Court — Appellate Division |
| Parties | , 30 Wage & Hour Cas. (BNA) 405 In the Matter of SARKISIAN BROTHERS, INC., et al., Petitioners, v. Thomas F. HARTNETT, as Commissioner of Labor, Respondent. |
O'Connor, Gacioch & Pope (Jeffrey A. Tait, of counsel), Binghamton, for petitioners.
Robert Abrams, Atty. Gen. (David C. Yamada, of counsel), Albany, for respondent.
Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent which, inter alia, found that petitioners failed to pay prevailing wage and wage supplements.
The issue to be resolved in this CPLR article 78 proceeding is whether respondent properly determined that the construction and alteration of Sheldon Hall was a "public works" project within the meaning of and subject to the prevailing wage law (Labor Law § 220). We conclude that the determination is supported by substantial evidence. It should be confirmed and the petition dismissed.
Sheldon Hall is a former classroom building located on the campus of the State University of New York (hereinafter SUNY) at Oswego which had fallen into disrepair and was formally abandoned in 1983 by the vote of SUNY Trustees. SUNY transferred the property to the State Office of General Services (hereinafter OGS), which invited community and college representatives to propose the best use for the building. The building's best use was decided to be as a hotel and convention center.
Subsequently, OGS published an invitation for proposals to lease the building for its "reuse and/or rehabilitation", specifying that the proposal must adhere to certain requirements and limiting the use to a "hotel/conference center, hotel/apartment or some combination thereof". Petitioners' proposal was chosen and in July 1985 OGS, SUNY and petitioners executed a project agreement and a lease providing that all costs were to be borne by petitioners. There was no mention of it being a public work project subject to the prevailing wage.
An investigator visited the work site in January 1988 while renovations were ongoing in response to a union complaint that there was no rate schedule posted at the site. After a hearing, respondent adopted and confirmed the report and recommendation of the Hearing Officer that the Sheldon Hall renovation was a public work project subject to prevailing wages. This CPLR article 78 proceeding to annul that determination ensued.
Petitioners argue that the Sheldon Hall renovation is not a public work project because it is a private venture for profit, privately financed, including contracts for all architectural and professional engineering work and subject to real property taxes payable by petitioners. This contention is rejected. The courts initially concluded that two conditions must be fulfilled for the prevailing wage provision's application: "(1) the public agency must be a party to a contract involving the employment of laborers, workmen, or mechanics, and (2) the contract must concern a public works project" (Matter of Erie County Indus. Dev. Agency v. Roberts, 94 A.D.2d 532, 537, affd. 63 N.Y.2d 810, 482 N.Y.S.2d 267, 472 N.E.2d 43)...
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...was to increase private low-income housing, the public was not a direct beneficiary of the work. In Matter of Sarkisian Bros. v. Hartnett , 172 A.D.2d 895, 568 N.Y.S.2d 190 (3d Dept. 1991) ), a different result was reached. The facts there concerned Sheldon Hall, a former classroom building......
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...AD 2d 532, 537 (4th Dept. 1983); Matter of National R.R. Passenger Crop. v Hartnett , 69AD2d 127. Sardinian Brothers, Inc. v. Hartnett , 172 A.D. 2d 895, (3rd Dept., 1991). Accordingly, a boat owned by a municipality is considered a public work. The workers involved in its construction, mai......
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Public Bidding and Contracts
...AD 2d 532, 537 (4th Dept. 1983); Matter of National R.R. Passenger Crop. v Hartnett , 69AD2d 127. Sardinian Brothers, Inc. v. Hartnett , 172 A.D. 2d 895, (3rd Dept., 1991). Accordingly, a boat owned by a municipality is considered a public work. The workers involved in its construction, mai......
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Public Bidding and Contracts
...AD 2d 532, 537 (4th Dept. 1983); Matter of National R.R. Passenger Crop. v Hartnett , 69AD2d 127. Sardinian Brothers, Inc. v. Hartnett , 172 A.D. 2d 895, (3rd Dept., 1991). Accordingly, a boat owned by a municipality is considered a public work. The workers involved in its construction, mai......
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Public Bidding and Contracts
...AD 2d 532, 537 (4th Dept. 1983); Matter of National R.R. Passenger Crop. v Hartnett , 69AD2d 127. Sardinian Brothers, Inc. v. Hartnett , 172 A.D. 2d 895, (3rd Dept., 1991). Accordingly, a boat owned by a municipality is considered a public work. The workers involved in its construction, mai......