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Empire State Chapter of Associated Builders and Contractors, Inc. v. Smith

Court of Appeals of New York

June 6, 2013

M. Patricia SMITH, in Her Official Capacity as Commissioner, New York State Department of Labor, et al., Respondents.

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[970 N.Y.S.2d 726] Phillips Lytle LLP, Buffalo (Timothy W. Hoover, Michael B. Powers and William J. Simon of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Andrea Oser, Barbara D. Underwood and Allyson B. Levine of counsel), for respondents.

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[992 N.E.2d 1069] We hold that, where the legislature has enacted a law of statewide impact on a matter of substantial state concern but has not treated all areas of the state alike, the Home Rule section of the State Constitution does not require an examination into the reasonableness of the distinctions the legislature has made.


The Wicks Law, originally enacted in 1912, requires public entities seeking bids on construction contracts to obtain " separate specifications" for three " subdivisions of the work to be

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performed" — generally, plumbing, electrical and HVAC (heating, ventilating and air conditioning) work (L. 1912, ch. 514, § 50, now codified in General Municipal Law § 101, Public Housing Law § 151-a, State Finance Law § 135 and elsewhere). The law has long been controversial; public entities have complained that it makes contracting more burdensome and expensive ( see generally Rosenstein & O'Reilly, Wicks Law Revisited, NYLJ, Nov. 13, 2007 at S1). Until 2008, the Wicks Law applied everywhere in the state to contracts whose cost exceeded $50,000.

This case concerns amendments to the Wicks Law enacted in 2008 that raised the $50,000 threshold, imposed so-called " apprenticeship requirements" on some public contracting, and made other changes not relevant here (L. 2008, ch. 57, part MM). The new, higher thresholds, unlike the old one, are not uniform throughout the state. They are $3 million in the five counties located in New York City; $1.5 million in Nassau, Suffolk and Westchester Counties; and $500,000 in the other 54 counties ( see id. §§ 1, 2-6, 14).

Plaintiffs' main claim, asserted in their first cause of action, is that the 2008 legislation violates article IX, § 2 of the State Constitution (the Home Rule section) by unjustifiably favoring the eight counties with higher thresholds— i.e., by loosening Wicks Law restrictions to a greater extent for them than for the other counties. Plaintiffs also assert 20 other claims, largely directed at the apprenticeship requirements imposed by the 2008 legislation.

On defendants' motion pursuant to CPLR 3211, Supreme Court dismissed the complaint, holding, as to the Home Rule cause of action, that plaintiffs lacked standing to assert it and that in any event the challenged amendments to the Wicks Law did not violate the Home Rule section because they " were enacted in furtherance of and bear a reasonable relationship to a substantial statewide concern" ( Empire State Ch. of Associated Bldrs. & Contrs., Inc. v. Smith, 30 Misc.3d 455, 457, 915 N.Y.S.2d 903 [Sup.Ct.Erie County 2010] ). Supreme Court also rejected plaintiffs' other claims. The Appellate Division held that one plaintiff, the County of Erie, did have standing to sue, but agreed with Supreme Court that plaintiffs' Home Rule claim and all of their other claims failed on the merits; it modified Supreme Court's judgment by reinstating the complaint to the extent it sought declaratory relief, and declaring the 2008 legislation valid and constitutional ( 98 A.D.3d 335, 949 N.Y.S.2d 549 [4th Dept.2012] ). Two Appellate [970 N.Y.S.2d 727]

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[992 N.E.2d 1070] Division Justices dissented; they agreed with the majority that the amendments addressed substantial state concerns, but concluded that the three-tiered classification of counties was not " rational and reasonably related to those State concerns" and was therefore invalid under the Home Rule section ( id. at 351, 949 N.Y.S.2d 549 [Peradotto, J., dissenting] ).

Plaintiffs appeal to us as of right, pursuant to CPLR 5601(a) and (b)(1). Like the Appellate Division majority, we conclude that at least one plaintiff, the County of Erie, has standing to assert the Home Rule claim ( see Town of Black Brook v. State of New York, 41 N.Y.2d 486, 393 N.Y.S.2d 946, 362 N.E.2d 579 [1977] ), but that that claim fails on the merits. We find that most of plaintiffs' other claims fail also, but modify the Appellate Division order to reinstate four causes of action challenging the apprenticeship requirements as applied to out-of-state contractors.


The Home Rule section of the State ...

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