IN RE: Kuba Brown

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Kuba Brown, as President of Local—A- B, etc., Petitioner–Appellant, v. John C. Liu, etc., Respondent–Respondent.  Service Employee International Union Local

7585 94 94 94 32

Decided: May 08, 2012

Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Freedman, JJ. Pitta & Giblin LLP, New York (Jane Lauer Barker of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondent.

BJ,

Amicus Curiae.

Office of the General Counsel, Service Employees International Union, New York (Andrew L. Strom of counsel), for amicus curiae.

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Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered March 30, 2011, granting respondents' cross motion to dismiss the petition brought pursuant to CPLR article 78, which sought, inter alia, to direct respondent Comptroller to conduct an investigation of the wage complaints filed by certain members of Local 94, unanimously affirmed, without costs.

The court correctly determined that the union members, the custodian-helpers, were not entitled to the prevailing wage and benefits protection under Labor Law article 9. Under the “indirect system” of custodial care, the New York City Department of Education (DOE) employs custodian-engineers in accordance with civil service regulations, who in turn may employ custodian-helpers (see generally Matter of Conlin v Aiello, 64 A.D.2d 921 [1978], affd 49 N.Y.2d 713 [1980] ).   The terms of the custodian-engineers' employment are set forth in the collective bargaining agreement between their union and the DOE. Thus, since custodian-engineers are employees of the DOE, they are not “contractors,” and custodian-helpers are not their “building service employees,” as those terms are defined in Labor Law § 230 et seq.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK