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January 22, 1996

BURGIO AND CAMPOFELICE, INC., Plaintiff, -vs- NEW YORK STATE DEPARTMENT OF LABOR; THOMAS P. HARTNETT, Industrial Commissioner of the State of New York; CHARLES C. DROBNER, Director of Bureau of Public Work, New York State Department of Labor; ROBERT ABRAMS, Attorney General of the State of New York, Defendants.

JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: CURTIN

Plaintiff Burgio & Campofelice, Inc. ("B&C"), a general contractor, seeks to enjoin the defendant New York State Department of Labor ("DOL") from enforcing the State's prevailing benefit supplement laws against B&C for benefit supplements which B&C's subcontractor, Shared Management Group, Ltd., allegedly failed to pay. The plaintiff claims that such state laws are preempted by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq.

 B&C entered into a public works construction contract on February 4, 1992, in the amount of $ 8,130,273, to build a new middle school for the Williamsville Central School District. One month later, B&C subcontracted the masonry for the project to Division 4 Masonry, Inc., at a cost of $ 2,398,000. The masonry work began in the spring of 1992, and continued until the middle of December, 1992. On December 18, 1992, the president of Division 4 Masonry informed B&C that Division 4 Masonry had not paid certain union-related benefit funds to its workers. On December 30, 1992, B&C was served with a notice of levy by the Internal Revenue Service that listed two names: Shared Management, Inc., and Division 4 Masonry.

 B&C learned that Division 4 Masonry had further subcontracted its portion of the contract to Shared Management, Inc. B&C never entered into any kind of agreement with Shared Management, nor did it employ any of the workers hired under the sub-sub-contract. On January 8, 1993, Division 4 Masonry stopped its work on the project, and B&C was forced to find another subcontractor to finish the masonry work. *fn1"

 On February 12, 1993, the Department of Labor issued a notice pursuant to § 220 of the New York Labor Law directing the Williamsville School District to withhold $ 350,900.00 in payments to B&C. This amount represented wages, wage supplements, interest, and penalties. On May 3, 1993, the Department of Labor clarified the amount and provided a detailed break down of the amounts: $ 191,845 in wage supplements, $ 27,467.36 in wages, $ 35,090.11 in interest, and $ 63,600.83 in penalties, for a total of approximately $ 318,000. The plaintiff now seeks to enjoin the withholding of these payments as well as a declaratory judgment that the state law is preempted.

 The defendants originally moved to dismiss the complaint on three grounds. They first argued that the court lacked subject matter jurisdiction over DOL, which, as an agency of New York State, is immune from suit under the Eleventh Amendment to the U.S. Constitution. Secondly, the defendants claimed that the second cause of action should be dismissed because the Eleventh Amendment bars plaintiffs from suing state officials for violations of state law in federal district court. Finally, the defendants contended that the plaintiff had no standing to bring suit under ERISA because it is not an employer, beneficiary, or trustee of an ERISA plan.

 In its decision and order of January 12, 1995, the court struck the Department of Labor from the complaint and dismissed the plaintiff's second cause of action for lack of subject matter jurisdiction. The court found that plaintiff did have the requisite standing to maintain its complaint against the defendant state officials for its first cause of action.

 Plaintiff's remaining claim is that ERISA preempts defendants from holding plaintiff liable for a subcontractor's underpayments of non-wage supplements subject to ERISA by virtue of the Supremacy Clause of the United States Constitution.

 1. New York Labor Law §§ 220 and 223 are preempted by ERISA as they relate to plaintiff's claim.

 The fundamental question in the present case is the nature and source of the liability at issue. The parties agreed at oral argument that when an employer defaults on payments owed an ERISA benefits plan, the Department of Labor cannot pursue an alternative state law enforcement mechanism because the state statute is preempted by ERISA. If however, the employer is liable for any other kinds of payments, the Department of Labor can pursue alternative enforcement mechanisms, and can hold the employer to state statutory wage and supplement obligations.

 Plaintiff, therefore, argues that the liability at issue in this case was incurred by the defaulting subcontractor who failed to make payments into a union-sponsored ERISA plan. Defendants argues that the plaintiff is liable independently of any ERISA obligation of the defaulting subcontractor, under New York State Labor Law § 223.

 These arguments are complicated by the fact that there is no bright-line test for determining whether a state law claim is preempted by ERISA. Section 514(a) of ERISA reads:

Except as provided in subsection (b) of this section, the provisions of [ERISA] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title.

 29 U.S.C. § 1144(a)(1994) (emphasis added).

 Section 514(a) was intended to have a "sweeping preemptive effect in the employee benefit plan field." American Progressive Life and Health Ins. Co. v. Corcoran, 715 F.2d 784, 786 (2d Cir. 1983). Congress intended ERISA to "preempt all state laws that relate to employee benefit plans and not just state laws which purport to regulate an area expressly covered by ...

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