HOPEWELL VOLUNTEER FIRE DEPARTMENT v. GARDNER, COLLEEN C. ( 2012 )


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  •          SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1291
    CA 12-00478
    PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
    IN THE MATTER OF HOPEWELL VOLUNTEER FIRE
    DEPARTMENT, INC. AND CHRISANNTHA CONSTRUCTION
    CORP., PETITIONERS-RESPONDENTS,
    V                             MEMORANDUM AND ORDER
    COLLEEN C. GARDNER, IN HER OFFICIAL CAPACITY AS
    NEW YORK STATE COMMISSIONER OF LABOR,
    RESPONDENT-APPELLANT.
    ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ZAINAB A. CHAUDHRY OF
    COUNSEL), FOR RESPONDENT-APPELLANT.
    SCICCHITANO & PINSKY, PLLC, SYRACUSE (BRADLEY M. PINSKY OF COUNSEL),
    FOR PETITIONERS-RESPONDENTS.
    Appeal from a judgment (denominated order) of the Supreme Court,
    Ontario County (Frederick G. Reed, A.J.), entered May 26, 2011 in a
    proceeding pursuant to CPLR article 78. The judgment granted the
    motion of petitioners for summary judgment.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously reversed on the law without costs, the motion is denied,
    respondent is granted summary judgment and the petition is dismissed.
    Memorandum: Petitioners commenced this CPLR article 78
    proceeding seeking, inter alia, determinations that the prevailing
    wage provisions of Labor Law § 220 were not applicable to the
    construction of an addition to a firehouse by petitioner Hopewell
    Volunteer Fire Department, Inc. and that respondent was prohibited
    from implementing or enforcing section 220 against petitioners. We
    conclude that Supreme Court erred in granting petitioners’ motion for
    summary judgment on the petition and, indeed, we conclude that the
    court should have granted summary judgment in favor of respondent
    pursuant to CPLR 3212 (b) and dismissed the petition. “Those who wish
    to challenge agency determinations under [CPLR] article 78 may not do
    so until they have exhausted their administrative remedies” (Walton v
    New York State Dept. of Correctional Servs., 8 NY3d 186, 195).
    “[Q]uestions regarding the applicability of Labor Law § 220 ‘cannot be
    answered without the development of a factual record and an
    examination of all the circumstances of the project, tasks which the
    Legislature has assigned, in the first instance, to respondent’ ”
    (Matter of Christa Constr., LLC v Smith, 63 AD3d 1331, 1331; see
    § 220 [8]). Here, “no final agency determination has been reached; in
    -2-                          1291
    CA 12-00478
    fact, no such determination can be made until a fact-finding hearing
    has been held. Absent exceptional circumstances, it is only after
    such a hearing is held, and a final determination made, that an
    aggrieved party may bring a CPLR article 78 proceeding to challenge
    the legality of the determination” (Matter of Pyramid Co. of Onondaga
    v Hudacs, 193 AD2d 924, 925). We reject petitioners’ contention that
    the exhaustion of administrative remedies is not necessary because the
    Department of Labor (DOL) was acting “wholly beyond its grant of
    power” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57).
    Here, as in Christa, the court “erroneously focused on its own
    conclusion that the project at issue was not subject to the prevailing
    wage law, as opposed to DOL’s broad jurisdiction to determine
    prevailing wages on public works projects in the first instance” (id.
    at 1332; see generally Pyramid Co. of Onondaga, 193 AD2d at 925-926).
    In light of our determination, we do not consider respondent’s
    remaining contention.
    Entered:   December 21, 2012                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 12-00478

Filed Date: 12/21/2012

Precedential Status: Precedential

Modified Date: 10/8/2016