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Empire State Chapter of Associated Builders and Contractors, Inc., County of Erie v. M. Patricia Smith

July 6, 2012

EMPIRE STATE CHAPTER OF ASSOCIATED BUILDERS AND CONTRACTORS, INC., COUNTY OF ERIE, CHRIS COLLINS, BUFFALO NIAGARA PARTNERSHIP INC., INNOVATIVE MECHANICAL SYSTEMS, INC., M.G.M.
INSULATION, INC., ALLEGHANY INDUSTRIAL INSULATION CO., DANIEL J. BRINSKY AND DOUG BYERLY,
PLAINTIFFS-APPELLANTS,
v.
M. PATRICIA SMITH, IN HER OFFICIAL CAPACITY AS COMMISSIONER, NEW
YORK STATE DEPARTMENT OF LABOR, AND THOMAS P. DINAPOLI, IN HIS OFFICIAL CAPACITY AS COMPTROLLER, STATE OF NEW YORK,
DEFENDANTS-RESPONDENTS.



Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered November 19, 2010.

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

Empire State Ch. of Associated Bldrs. & Contrs., Inc. v M. Patricia Smith

Decided on July 6, 2012

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.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

OPINION AND

The judgment granted the motion of defendants to dismiss the complaint.

It is hereby ORDERED that the judgment so appealed from is modified on the law by denying defendants' motion to the extent that it sought dismissal of the complaint, reinstating the complaint insofar as declaratory relief was sought, and granting judgment in favor of defendants as follows: It is ADJUDGED AND DECLARED that the 2008 amendments to the Wicks Law are valid and constitutional and as modified the judgment is affirmed without costs.

Opinion by Sconiers, J.:

For the past 100 years, certain publicly-funded construction projects in this State having a cost that exceeds a specific monetary threshold (qualifying projects) have been subject to legislation generally known as the "Wicks Law." The Wicks Law is comprised of a collection of statutes found, inter alia, in the General Municipal Law, State Finance Law, Public Authorities Law, Public Housing Law and Education Law. The Wicks Law requires a governmental entity contracting for a qualifying project to prepare separate bid specifications and award separate contracts for three categories of work, i.e., plumbing and gas fitting; heating, ventilating and air conditioning; and electric wiring and light fixtures (see General Municipal Law § 101 [1] [a] - [c]; [2]; State Finance Law § 135; Public Authorities Law §§ 1045-i [2-a]; 1048-i [2-a]; 3303 [10] [c-1]; 3402 [9] [c-1]; 3603 [9] [c-1]; 3628 [11] [c-1]; Public Housing Law § 151-a [2-a]; Education Law § 458 [2-a]). Upon enactment of the Wicks Law in 1912, the initial monetary threshold for publicly-funded projects subject to such separate bidding requirements was $1,000 (see L 1912, ch 514). The threshold increased various times until it reached $50,000 in 1961 for projects funded by the State (see L 1961, ch 292) and in 1964 for projects funded by political subdivisions of the State (see L 1964, ch 572).

The $50,000 threshold remained uniform for all governmental entities until 2008, when the Legislature enacted comprehensive reforms to the Wicks Law (see L 2008, ch 57, Part MM). The 2008 amendments, which went into effect on July 1, 2008 (see L 2008, ch 57, Part MM, § 20), increased the monetary threshold to $3 million for the five counties comprising New York City, $1.5 million for the downstate suburban counties of Nassau, Suffolk and Westchester, and $500,000 for all other counties (see e.g. L 2008, ch 57, Part MM, § 1). In addition to creating that three-tiered monetary threshold, the 2008 amendments altered the Wicks Law framework by providing a means for governmental entities to opt out of the Wicks Law's separate bidding requirements altogether. Recently-enacted Labor Law § 222, entitled "Project labor agreements," exempts qualifying projects from those requirements provided that a project labor agreement complying with the terms of that section is in place (see Labor Law § 222 [2] [b]).

Plaintiffs commenced this action alleging 21 causes of action challenging the 2008 amendments to the Wicks Law on the ground that those amendments violate several provisions of the New York State and Federal Constitutions, and seeking, inter alia, judgment declaring the 2008 amendments to be unconstitutional and enjoining their enforcement. Plaintiffs are: Empire State Chapter of Associated Builders and Contractors, Inc. and Buffalo Niagara Partnership Inc., professional organizations whose members are subject to the Wicks Law; Alleghany Industrial Insulation Co., a Pennsylvania construction corporation that performs work on public projects in New York, its President Daniel J. Brinsky and construction foreman Doug Byerly; M.G.M. Insulation, Inc., a minority-owned business; Innovative Mechanical Systems, Inc., a women-owned business; and the County of Erie and Chris Collins, its former County Executive. Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7) on the grounds that plaintiffs lack standing with respect to certain causes of action and the complaint fails to state a cause of action. Supreme Court granted the motion and dismissed the complaint (Empire State Ch. of Associated Bldrs. & Contrs., Inc. v Smith, 30 Misc 3d 455). Because plaintiffs seek declaratory relief, however, we conclude that "the proper course is not to dismiss the complaint but rather to issue a declaration in favor of the defendants" (Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954; see Matter of Penfield Tax Protest Group v Yancey, 210 AD2d 901, appeal dismissed 85 NY2d 903, lv denied in ...


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