GAWEZ v. (and a third-party action). (2007)

In a putative class action, inter alia, to recover wages at the prevailing rate mandated by Labor Law § 220, the plaintiffs appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Kings County (Lewis, J.), dated September 13, 2005, which, among other things, granted those branches of the cross motion of the defendants Inter-Connection Electric, Inc., and Jeff Skowronski which were, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action insofar as asserted against them to recover wages and benefits for work performed on certain federally-funded projects and the Luna Park Houses project, and granted those branches of the cross motion of the defendants First National Insurance Company of America and RLI Insurance Company which were for summary judgment dismissing the causes of action insofar as asserted against them to recover wages and benefits for work performed on certain federally-funded projects, the 1010 East 178th Street Development project, the New Cambria Heights Library project, and the Castle Hill Houses project.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Beginning in or about 1998, the defendants Inter-Connection Electric, Inc., and its corporate president, Jeff Skowronski (hereinafter collectively the contractor defendants), entered into numerous contracts with several nonparty municipal and governmental entities to provide construction work on various public works projects.   Four of these projects were federally funded, and the contracts for these projects contained language requiring the payment of wages and benefits to workers which complied with the wage determination schedules promulgated by the United States Secretary of Labor under the provisions of the Davis-Bacon Act (40 USC § 3141 et seq.).   The defendants First National Insurance Company of America and RLI Insurance Company (hereinafter collectively the surety defendants) each supplied payment bonds for the various public works contracts.

The plaintiffs Jacek Gawez, Marek Mroz, Ireneusz Kotarski, Zdzislaw Tolpa, and Grzegorz Dobkowski, on their own behalf and on behalf of a putative class of individuals who furnished labor on the public works projects (hereinafter collectively the plaintiffs), commenced this action, asserting that the contractor defendants and the surety defendants failed to pay them the “prevailing wage” to which they were entitled under the Labor Law and State common law.   The plaintiffs moved to certify the class, and the contractor defendants cross-moved, inter alia, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action insofar as asserted against them to recover wages and benefits for work performed on the federally-funded projects and on the Luna Park Houses project.   The surety defendants cross-moved, among other things, for summary judgment dismissing the causes of action insofar as asserted against them to recover wages and benefits for work preformed on the federally-funded projects, the 1010 East 178th Street Development project, the New Cambria Heights Library project, and the Castle Hill Houses project.

 The Supreme Court properly granted those branches of the respective cross motions which sought dismissal of the causes of action to recover wages and benefits on the federally-funded projects.   No private right of action exists to enforce contracts requiring payment of prevailing wages pursuant to the Federal Davis-Bacon Act (see 40 USC § 3142 et seq.;   Araujo v. Tiano's Constr. Corp., 40 A.D.3d 458, 834 N.Y.S.2d 660;  Gonzalez v. D & S Zaffuto Joint Venture, 271 A.D.2d 356, 707 N.Y.S.2d 87;  Broder v. Cablevision Sys. Corp., 418 F.3d 187, 198;  Grochowski v. Phoenix Constr., 318 F.3d 80;   Operating Engr. Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 676;  Weber v. Heat Control Co., 728 F.2d 599;  United States v. Capeletti Bros., Inc., 621 F.2d 1309, 1317;  but see Cox v. NAP Constr. Co., Inc., 40 A.D.3d 459, 837 N.Y.S.2d 612).

 The Supreme Court properly granted that branch of the contractor defendants' cross motion which was, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action insofar as asserted against them to recover wages and benefits on the privately-funded Luna Park Houses project.   The contractor defendants submitted the contract between Luna Park Housing Corporation and the defendant Inter-Connection Electric, Inc., thereby conclusively establishing that Luna Park Housing Corporation is a private entity and therefore not subject to prevailing wage guidelines (see Kupersmith v. Winged Foot Golf Club, Inc., 38 A.D.3d 847, 832 N.Y.S.2d 675).

 The Supreme Court properly granted that branch of the surety defendants' cross motion which was for summary judgment dismissing the causes of action insofar as asserted against them to recover wages and benefits on the 1010 East 178th Street Development project, the Castle Hill project, and the New Cambria Heights Library project.   The surety defendants established, as a matter of law, that none of the named plaintiffs did any work on these projects (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition, the plaintiffs failed to raise a triable issue of fact (id.).

The plaintiffs' remaining contentions are improperly raised for the first time on appeal or without merit.