Piotr Wrobel and TOMASZ STANKIEWICZ, individually and on behalf of all other persons similarly situated who were employed by PMJ ELECTRICAL CORP., with respect to certain Public Works Projects Awarded by the NEW YORK CITY DEPARTMENT OF EDUCATION and/or performed work pursuant to the NEW YORK CITY RAPID REPAIR PROGRAM, Plaintiffs,
Shaw Environmental & Infrastructure Engineering of New York, P.C., BILTMORE GENERAL CONTRACTORS, INC., PMJ ELECTRICAL CORP., and SLSCO, L.P. d/b/a SULLIVAN LAND SERVICES, LTD., Defendants.
Attorneys for Plaintiffs: Jack L. Newhouse and Michele A.
Moreno of Virigina & Ambinder, LLP
Attorneys for Defendant SLSCO, L.P. d/b/a Sullivan Land
Services, Ltd.: Victor Rivera, Jr. of Rich Intelisano &
Saliann Scarpulla, J.
SLSCO, L.P. d/b/a Sullivan Land Services, Ltd.
("SLSCO") moves, pursuant to CPLR 3211 (a) (1) and
(7), to dismiss the first amended complaint of proposed class
representative plaintiffs Piotr Wrobel ("Wrobel")
and Tomasz Stankiewicz ("Stankiewicz")
(collectively "Plaintiffs"), based on documentary
evidence and for failure to state a cause of action.
is construction company based in Houston, Texas. On December
24, 2012, SLSCO entered into a contract (the "Prime
Contract") with the New York City Department of
Environmental Protection ("DEP") to provide home
repairs as part of the New York City Rapid Repair Program
(the "RRP"). Pursuant to the Prime Contract, SLSCO
was to provide "labor, supervision, materials, and other
associated equipment and costs required to safely restore
heat, hot water, and power to and to make temporary exterior
and internal repairs necessary to allow residents to inhabit
[p]roperties assigned to [SLSCO]." Prime Contract, art.
3 [A]. SLSCO engaged various subcontractors to perform
various parts of the Prime Contract, including defendant PMJ
Electrical Corp. ("PMJ").
the Prime Contract, SLSCO agreed to comply with "all
applicable Federal, State and local Laws, including but not
limited to the payment of wages compliant with all
requirements of... [Labor Law § 220]." Prime
Contract, art. 31 [A]. Thus, in the Prime Contract the
parties agreed that "all persons employed by Contractor
and any Subcontractor in the manufacture or furnishing of the
supplies, materials, or equipment, or the furnishing of work,
labor, or services, used in the performance of this Contract
shall be paid, without subsequent deduction or rebate unless
expressly authorized by Law, not less than the sum mandated
by Law. The Prime Contract also provided that it "shall
not be deemed to create any new right of action in favor of
third parties against [SLSCO] or [New York City]." Prime
Contract, art. 50.
and Stankiewicz, along with the other members of the proposed
class, were employed by PMJ, a subcontractor to SLSCO, as
well as by defendant Biltmore General Contractors, Inc.
("Biltmore"), on unrelated construction projects.
Plaintiffs allege that, while working on the RRP projects,
PMJ paid them "less than the prevailing rates of wages
and supplements to which [p]laintiffs and the other members
of the putative class were entitled." Am. Compl. ¶
23. Plaintiffs also allege, upon information and belief, that
the prevailing wage provisions of the Prime Contract were
"incorporated by reference into the [p]ublic [w]orks
[s]ubcontracts between [SLSCO] and PMJ." Am. Compl.
originally commenced this action against Biltmore, PMJ, and
former defendant Shaw Environmental & Infrastructure
Engineering of New York, P.C. ("Shaw"). I
subsequently granted Plaintiffs' motion to add SLSCO as a
defendant and serve an amended complaint. Plaintiffs then
filed an amended complaint alleging breach of the Prime
Contract and/or subcontracts against PMJ (first cause of
action), breach of the Prime Contract against SLSCO and
Biltmore (second cause of action), and a suretyship and Labor
Law § 220-g claim against 20 John Doe bonding companies
(third cause of action).
moves to dismiss the second cause of action for breach of
contract, the sole cause of action asserted against it in the
amended complaint, in which Plaintiffs allege that SLSCO
breached the Prime Contract by failing to ensure that PMJ
paid Plaintiffs a prevailing wage.
argues that Plaintiffs' claim must be dismissed because
the Prime Contract expressly precludes recovery by third
party beneficiaries. Further, SLSCO argues that Plaintiffs
may only recover as third party beneficiaries of a contract
between a municipality and their employer, and SLSCO is not
opposition, Plaintiffs argue that the negation clause
language in the Prime Contract does not affect their right to
recover for underpayment of wages as third party
beneficiaries, a right which is set forth in both statutory
and common law. Plaintiffs also argue that, in the Prime
Contract, SLSCO agreed to ensure that all employees,
including subcontractors' employees, would be paid
prevailing wages, and that upon a subcontractor's failure
to do so, the Plaintiffs, as third-party beneficiaries of the
Prime Contract, should be able to recover against SLSCO.
Labor Law was enacted to protect workers, see, e.g.,
Vasquez v Urbahn Assoc. Inc., 79 A.D.3d 493, 499 (1st
Dep't 2010) (Acosta and Freedman, JJ., dissenting in
part). Thus, Labor Law § 220 (3) (a) provides that
"[t]he wages to be paid for a legal day's work, as
hereinbefore defined, to laborers, workmen or mechanics upon
such public works, shall be not less than the prevailing rate
of wages as hereinafter defined." Further, public works
contracts "shall contain a provision that each laborer,
workman or mechanic, employed by such contractor,
subcontractor or other person about or upon such public work,
shall be paid the wages herein provided." Id.
Under Labor Law § 220, a laborer alleging that ...