Brown v. Liu — 95 A.D.3d 549

Majority

p. 549

In the Matter of Kuba Brown, as President of Local 94-94A-94B, International Union of Operating Engineers, AFL-CIO, Appellant, v John C. Liu, as Comptroller of the City of New York, Respondent.

[943 NYS2d 110]—

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered March 30, 2011, granting respondents’

p. 550

cross motion to dismiss the petition brought pursuant to CPLR article 78, which sought, inter alia, to direct respondent Comptroller to conduct an investigation of the wage complaints filed by certain members of Local 94, unanimously affirmed, without costs.

The court correctly determined that the union members, the custodian-helpers, were not entitled to the prevailing wage and benefits protection under Labor Law article 9. Under the “indirect system” of custodial care, the New York City Department of Education (DOE) employs custodian-engineers in accordance with civil service regulations, who in turn may employ custodian-helpers (see generally Matter of Conlin v Aiello, 64 AD2d 921 [1978], affd 49 NY2d 713 [1980]). The terms of the custodian-engineers’ employment are set forth in the collective bargaining agreement between their union and the DOE. Thus, since custodian-engineers are employees of the DOE, they are not “contractors,” and custodian-helpers are not their “building service employees,” as those terms are defined in Labor Law § 230 et seq. Concur — Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Freedman, JJ. [Prior Case History: 31 Mise 3d 980.]

Cases cited

Conlin v. Aiello 49 NY2d 713 N.Y. 1980-02-05 p. 550

Statutes and regulations cited

Labor Law p. 550