The opinion of the court was delivered by: Catterson, J.
De La Cruz v Caddell Dry Dock & Repair Co., Inc.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law Â§ 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 12, 2012
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Sallie Manzanet-Daniels, J.P.
Plaintiffs appeal from an order of the Supreme Court, Bronx County (Wilma Guzman, J.), entered May 19, 2010, which denied plaintiffs' motion for partial summary judgment on the issue of liability and granted defendants' motion for summary judgment dismissing the complaint.
In this action arising out of the plaintiffs' claim that they were not paid the required prevailing wage and supplemental benefits under Labor Law Â§ 220, we are constrained by the decision of the Court of Appeals in Brukhman v. Giuliani (94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)) to find that the repair of City vessels is not a "public work" within the meaning of the statute. The plaintiffs' claim fails on the ground that Brukhman mandates a showing of more than just public purpose or function to determine that a project is a "public work."
The undisputed facts of this case are as follows: Between 1996 and 2006, defendant Caddell Dry Dock & Repair Co. entered into contracts with various municipal corporations of the City of New York -- including the Fire Department, the Department of Transportation, and the Department of Sanitation (collectively, the "agencies") -- to perform dry-docking and repairs on various publicly-owned vessels, such as fire boats, garbage barges, and ferries. Many of the contracts, including the ones relevant to this action, contained provisions calling for the payment of the prevailing rate of wages and supplemental benefits for work performed on "public works" projects pursuant to Labor Law section 220(3).
The plaintiffs commenced this action on or about September 25, 2002, on behalf of themselves and a putative class of approximately 750 workers, against Caddell and against American Automobile Insurance Company and American Manufacturers Mutual Insurance Company, Caddell's sureties. In the complaint, plaintiffs alleged that they performed work for Caddell under the "public works" contracts, and that the work included repair and maintenance work. The plaintiffs further alleged that they were not paid the required prevailing rate of wages and supplemental benefits.
On or about December 24, 2002, the defendants moved to dismiss the complaint. The court denied the motion, and directed defendants to file an answer. On or about August 11, 2003, defendants renewed their motion to dismiss the complaint. Upon renewal, the motion court granted the motion to dismiss. In granting the motion, the court determined that the work under the contracts was not "public work" within the meaning of Labor Law Â§ 220(3).
On appeal, this Court reinstated so much of plaintiffs' complaint as alleged breach of contract against Caddell (the complaint's second cause of action) and joint and several liability against the sureties (the complaint's sixth cause of action) De La Cruz v. Caddell Dry Dock & Repair Co., 22 AD3d 404, 804 N.Y.S.2d 58 (1st Dept. 2005)(hereinafter referred to as "Caddell I"). However, we stated that the fifth cause of action for willful failure to pay prevailing wages was "properly dismissed" and remanded the matter for further proceedings. Id. at 406. The parties subsequently cross-moved for summary judgment, with the plaintiffs moving only for partial judgment on liability and the defendants moving for dismissal of the complaint. By order entered May 19, 2010, the motion court denied the plaintiffs' motion and granted the defendants' motion, dismissing the complaint against both Caddell and the sureties. The court found that determination of the motions depended on whether repair work on a vessel constitutes a "public work." The court found, therefore, that the issue was not properly before it as the issue was decided by the original trial court and upheld by the Appellate Division. The plaintiffs appealed.
As a threshold matter, the sole issue to be determined on this appeal is whether the plaintiffs' work, repairing vessels, is "public work" since we did not decide this issue when we dismissed the plaintiffs' fifth cause of action in Caddell I. Thus, the motion court erred in basing its determination on what it perceived to be the law of the case. However, the court was correct in ...