prevailing wage requirement in New York

2016Co., Inc., 18 AD3d 527, 529 [2005]).

2006Co., Inc., supra at 529).

2011Works, 28 AD3d 1, 5-6 , lv denied 6 NY3d 711 ).

2011Works, 28 AD3d 1, 5 [2005], lv denied 6 NY3d 711 [2006]).

2026The creation of this administrative route to recover prevailing wages, over which workers have "no control" ( Sweeney , 89 NY2d at 402 ), did not remove or diminish workers' preexisting right to recover prevailing wages as third-party beneficiaries to public works contracts ( see Wright v Herb Wright Stucco, Inc. , 50 NY2d 837, 839 [1980], revg for reasons stated in Appellate Division dissenting memorandum 72 AD2d 959, 960-961 [4th Dept 1979]).

2026The creation of this administrative route to recover prevailing wages, over which workers have "no control" ( Sweeney , 89 NY2d at 402 ), did not remove or diminish workers' preexisting right to recover prevailing wages as third-party beneficiaries to public works contracts ( see Wright v Herb Wright Stucco, Inc. , 50 NY2d 837, 839 [1980], revg for reasons stated in Appellate Division dissenting memorandum 72 AD2d 959, 960-961 [4th Dept 1979]).

2017(See City of New York v 17 Vista Assoc., 84 NY2d 299, 306 [1994]; Szerdahelyi v Harris, 67 NY2d 42, 48 [1986]; McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 469 [1960].) Like Judge Kalish, I find that enforcement of a negation clause like the clause in the prime contract, to eliminate the plaintiffs’ common-law right as third-party beneficiaries of the prime contract to enforce the prevailing wage requirement, is against strong New York public policy.

2017(See City of New York v 17 Vista Assoc., 84 NY2d 299, 306 [1994]; Szerdahelyi v Harris, 67 NY2d 42, 48 [1986]; McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 469 [1960].) Like Judge Kalish, I find that enforcement of a negation clause like the clause in the prime contract, to eliminate the plaintiffs’ common-law right as third-party beneficiaries of the prime contract to enforce the prevailing wage requirement, is against strong New York public policy.

2017(See City of New York v 17 Vista Assoc., 84 NY2d 299, 306 [1994]; Szerdahelyi v Harris, 67 NY2d 42, 48 [1986]; McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 469 [1960].) Like Judge Kalish, I find that enforcement of a negation clause like the clause in the prime contract, to eliminate the plaintiffs’ common-law right as third-party beneficiaries of the prime contract to enforce the prevailing wage requirement, is against strong New York public policy.

2016“The ‘determination of a prevailing wage claim is, in the first instance, the exclusive province of the [Comptroller] and must be initially subjected to an administrative proceeding’ ” (Brandy v Canea Mare Contr., Inc., 34 AD3d 512, 514 [2006], quoting P & T Iron Works v Talisman Contr.

2013The prevailing wage requirement “applies only to workers involved in the construction, replacement, maintenance [or] repair of ‘public works’ ” (Brukhman, 94 NY2d at 396 , quoting Varsity Tr. v Saporita, 71 AD2d 643, 644 [2d Dept 1979], affd 48 NY2d 767 [1979]).

2013Walker v Town of Hempstead, 84 NY2d 360, 367 [1994]; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205 , 208-209 [1976]).

2012Even with the most liberal construction, a bus driver or a matron in charge of children passengers is not a construction worker nor do they replace, maintain or repair public works.” (Varsity Tr., 98 Misc 2d 255, 259-260 [Sup Ct, Kings County 1979].) In 1983, the Court of Appeals affirmed the Fourth Department in rejecting a prevailing wage claim in Matter of Erie County Indus.

2007Corp., 10 Misc 3d 82, 85 [App Term, 2d Dept 2005] [internal quotation marks omitted].) Just as compliance with safety rules under the Labor Law is distinct from compliance with federal immigration laws (see id. at 86 ), compliance with the prevailing wage requirement does not contravene the IRCA either because “between the worker and the employer there is a contract of employment, under which the worker is entitled to be paid for his or her work . . . [that does not depend on] a worker’s compliance with federal immigration laws.” (Id., quoting Majlinger v Cassino Contr.

2007Corp., 10 Misc 3d 82, 85 [App Term, 2d Dept 2005] [internal quotation marks omitted].) Just as compliance with safety rules under the Labor Law is distinct from compliance with federal immigration laws (see id. at 86 ), compliance with the prevailing wage requirement does not contravene the IRCA either because “between the worker and the employer there is a contract of employment, under which the worker is entitled to be paid for his or her work . . . [that does not depend on] a worker’s compliance with federal immigration laws.” (Id., quoting Majlinger v Cassino Contr.

2007Corp., 25 AD3d 14, 24-25 [2d Dept 2005] [“The contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker’s compliance with federal immigration laws”]; see also Madeira, 469 F3d at 242.) That is, any alleged illegality under the IRCA occurs between the employer and the government or between the employee and the government, and, consequently, an employee may sue an employer for unpaid wages in spite of alleged IRCA violations.

2007Corp., 25 AD3d 14, 24-25 [2d Dept 2005] [“The contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker’s compliance with federal immigration laws”]; see also Madeira, 469 F3d at 242.) That is, any alleged illegality under the IRCA occurs between the employer and the government or between the employee and the government, and, consequently, an employee may sue an employer for unpaid wages in spite of alleged IRCA violations.

1988Although the town should be charged with knowledge of its duty to obtain a schedule of prevailing wages, plaintiff, an experienced public work contractor, likewise knew or should have known of the prevailing wage requirement and is chargeable with such knowledge (Village of Medina v Dingledine, 211 NY 24, 28 ; see also, Matter of Cam-Ful Indus. v Roberts, 128 AD2d 1006, 1007 ).

1988Moreover, to allow recovery by plaintiff would circumvent a statute designed to serve the public good and impose a fiscal burden upon the town and its taxpayers, who are intended beneficiaries of the statutory scheme (Village of Medina v Dingledine, supra, at 29; see also, Associated Bldrs. & Contrs. v City of Rochester, 67 NY2d 854 ; Fata v Healy Co., 289 NY 401 ; Matter of General Bldg.

1988Although the town should be charged with knowledge of its duty to obtain a schedule of prevailing wages, plaintiff, an experienced public work contractor, likewise knew or should have known of the prevailing wage requirement and is chargeable with such knowledge (Village of Medina v Dingledine, 211 NY 24, 28 ; see also, Matter of Cam-Ful Indus. v Roberts, 128 AD2d 1006, 1007 ).

1988Moreover, to allow recovery by plaintiff would circumvent a statute designed to serve the public good and impose a fiscal burden upon the town and its taxpayers, who are intended beneficiaries of the statutory scheme (Village of Medina v Dingledine, supra, at 29; see also, Associated Bldrs. & Contrs. v City of Rochester, 67 NY2d 854 ; Fata v Healy Co., 289 NY 401 ; Matter of General Bldg.