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Ellicott Group, LLC v. State of New York Executive Department Office of General Services

April 29, 2011

ELLICOTT GROUP, LLC,
PLAINTIFF-RESPONDENT,
v.
STATE OF NEW YORK EXECUTIVE DEPARTMENT OFFICE OF GENERAL SERVICES,
DEFENDANT-APPELLANT.



Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John M. Curran, J.), entered January 19, 2010 in a declaratory judgment action.

The opinion of the court was delivered by: Centra, J.

Ellicott Group, LLC v State of New York Exec. Dept. Off. of Gen. Servs.

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 29, 2011

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.

OPINION AND

The judgment granted the motion of plaintiff for summary judgment declaring that the prevailing wage clause that defendant sought to be included in a proposed lease is not authorized by the Labor Law and that defendant violated the separation of powers doctrine by insisting on the inclusion of that clause and permanently enjoined defendant from mandating that the clause be included in the lease.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Opinion by Centra, J.: At issue in this appeal is whether defendant, State of New York Executive Department Office of General Services (OGS), had the authority to include a provision in a lease agreement requiring plaintiff to pay prevailing wages to certain workers regardless of whether the statutory requirements of the prevailing wage law applied. We conclude that OGS did not have that authority because the exercise of its executive power unlawfully impinged upon a legislative function, and we thus conclude that the judgment should be affirmed.

Prevailing Wage Law

"Our State Constitution provides that laborers, workers and mechanics engaged in any public work' cannot be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used' " (Matter of New York Charter School Assn. v Smith, 15 NY3d 403, 407-408, quoting NY Const, art I, § 17). Articles 8 and 9 of the Labor Law implement this constitutional mandate. Labor Law § 220 (2) provides in relevant part that "[e]ach contract to which the state or a public [entity] . . . is a party, and any contract for public work entered into by a third party acting in place of, on behalf of and for the benefit of such public entity pursuant to any lease, permit or other agreement between such third party and the public entity, and which may involve the employment of laborers, workers or mechanics shall contain a stipulation that no laborer, worker or mechanic . . . shall be permitted or required to work more than eight hours in any one calendar day or more than five days in any one week." Subdivision (3) (a) provides that the wages to be paid to a laborer, worker or mechanic "upon such public works" shall not be less than the prevailing rate of wages.

Thus, "[i]n general, Labor Law ยง 220 requires that certain contracts involving the employment of laborers, workers or mechanics on a public work project provide for the payment of the prevailing wage rate" (New York Charter School Assn., 61 AD3d 1091, 1093, affd 15 NY3d 403). In order for the prevailing wage law to apply, two conditions must be met: "(1) the public agency must be a party to a contract involving the employment of laborers, work[ers], or mechanics, and (2) the contract must concern a public works project" (Matter of Erie County ...


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