SULLIVAN v. True Plumbing & Heating Corporation, et al., Defendants. (1998)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered December 30, 1997, which, in this action to recover prevailing wages and benefits on a payment bond pursuant to Labor Law §§ 220 and 220-g, to the extent appealed from, denied defendant-appellant surety's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Assuming arguendo that the motion court properly ignored plaintiffs' affidavits since they contradicted, without explanation, their month-old deposition testimony (see, Tse Chin Cheung v. G & M Hardware & Electric, 249 A.D.2d 28, 670 N.Y.S.2d 495;  see also, Rubinberg v. Walker, 252 A.D.2d 466, 676 N.Y.S.2d 149), and that plaintiffs therefore failed to raise an issue of fact in response to the surety's prima facie showing that they participated in their employer's payroll kickback scheme, the surety was nonetheless not entitled to dismissal of the workers' claims.   As the motion court recognized, under the circumstances, the public policy implemented by Article 8 of the Labor Law, seeking to ensure payment of prevailing wages on public construction contracts, is paramount to the surety's interest in avoiding liability for obligations imposed upon it without its consent.   In proceeding under Labor Law § 220-g, plaintiffs were not required to proceed first in an administrative forum since there is no claim here that the payment bonds have not been filed.

MEMORANDUM DECISION.