Feher Rubbish Removal, Inc. v. New York State Department of Labor

28 A.D.3d 1, 807 N.Y.S.2d 494
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 22, 2005
StatusPublished
Cited by21 cases

This text of 28 A.D.3d 1 (Feher Rubbish Removal, Inc. v. New York State Department of Labor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feher Rubbish Removal, Inc. v. New York State Department of Labor, 28 A.D.3d 1, 807 N.Y.S.2d 494 (N.Y. Ct. App. 2005).

Opinion

OPINION OF THE COURT

Pine, J.

In each of these appeals defendant, the New York State Department of Labor, Bureau of Public Works (DOL), appeals from judgments wherein Supreme Court purported to annul the DOL’s “determination^]” that prevailing wages must be paid by Feher Rubbish Removal, Inc. and Syracuse Haulers Waste Removal, Inc. (collectively, plaintiffs) “for refuse collection under contracts with municipalities’ ’ to the extent that such “determination^] ” included properties that were not “ ‘public buildings’ ” as that term is defined by Labor Law § 2 (13). Additionally, the court declared that plaintiffs have “no obligation to pay prevailing wages to [their] employees under Article 9 of the New York State Labor Law, except to the extent that the property being serviced is a ‘public building’ as the term is defined by” Labor Law § 2 (13). At issue in these appeals is [3]*3whether Labor Law § 231 (1) requires employers to pay the prevailing wage to their employees who collect garbage or refuse from private buildings pursuant to contracts between the employers and municipalities. The issue is one of first impression in this state and, for the reasons that follow, we conclude that section 231 (1) requires employers to pay the prevailing wage to those employees.

I

Plaintiffs each commenced a combined CPLR article 78 proceeding and declaratory judgment action against the DOL. They did not, however, actually seek review of any formal determination by the DOL. Rather, they sought a declaration of rights in advance of a formal determination. Inasmuch as CPLR article 78 proceedings seek review of administrative determinations, actions or omissions (see generally CPLR 7803), we conclude that the combined CPLR article 78 proceedings and declaratory judgment actions are properly declaratory judgment actions only. Therefore, to the extent that the court purported to annul administrative determinations, we conclude that there were no such “determination[sj” to annul.

With respect to the court’s declarations, we agree with the DOL that the court should have declared that plaintiffs are obligated to pay the prevailing wage to their employees who collect garbage or refuse from public or private buildings under the employers’ contracts with the municipalities. Labor Law § 231 (1) provides that “[ejvery contractor shall pay a service employee under a contract for building service work a wage of not less than the prevailing wage in the locality for the craft, trade or occupation of the service employee.” The DOL contends that section 231 (1) requires plaintiffs to pay the prevailing wage to their employees who collect garbage or refuse from private buildings pursuant to plaintiffs’ contracts with the municipalities at issue. Plaintiffs argue to the contrary, contending that section 231 (1) does not apply to the collection of garbage or refuse from private buildings but instead applies only to public buildings.

II

Inasmuch as these appeals involve “a question of statutory interpretation, we turn first to the plain language of the statutes as the best evidence of legislative intent” (Matter of Malta Town Ctr. I, Ltd. v Town of Malta Bd. of Assessment Review, 3 NY3d [4]*4563, 568 [2004]; see McKinney’s Cons Laws of NY, Book 1, Statutes [hereafter, Statutes] § 92 [b]; § 94; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Labor Law § 231 (1) applies to contracts for building service work, and such work is defined as work performed by building service employees (see Labor Law § 230 [2]). A building service employee is defined as “any person performing work in connection with the care or maintenance of an existing building . . . for a contractor under a contract with a public agency . . . the principal purpose of which is to furnish services through the use of building service employees” (§ 230 [1]). Plaintiffs contracted with public agencies, to wit, the municipalities (see § 230 [3]), for the purpose of furnishing garbage and refuse collection services, and “occupations relating to the collection of garbage or refuse” are included in the definition of building service employee (§ 230 [1]). The issue before us in these appeals is whether “performing work in connection with the care or maintenance of an existing building” within the meaning of section 230 (1) is limited to a public building (emphasis added). Although the term “building” is not defined in article 9, “statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (Statutes § 94). We conclude that, in its natural and most obvious sense, the term “building” includes all buildings whether public or private. We thus conclude that employees who collect garbage or refuse are building service employees inasmuch as they perform work in connection with the care or maintenance of existing buildings.

We find nothing in the plain language of Labor Law § 231 (1) to support plaintiffs’ contention that section 231 (1) applies only to public buildings. Because statutes and legislative acts should be construed as a whole when determining legislative intent (see Statutes § 97), we are guided by other sections of the Labor Law. Labor Law § 235 (7), which addresses potential penalties for violations of Labor Law article 9, provides that one possible penalty for multiple violations is that the contractor will become ineligible to submit bids or be awarded “public building service work” for a specified period of time. We reject plaintiffs’ contention that the reference to “public” building service work in that section requires that the same limitation be read into section 231 (1) such that all references to “buildings” would be limited only to “public” buildings. “[M]eaning and effect should be given to every word of a statute. Words are [5]*5not to be rejected as superfluous where it is practicable to give each a distinct and separate meaning’ ” (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001], quoting Cohen v Lord, Day & Lord, 75 NY2d 95, 100 [1989]; see Statutes § 231). Furthermore, “[a] 11 parts of a statute must be harmonized with each other as well as with the general intent of the whole statute” (Statutes § 98). In our view, the use of the term “public” in Labor Law § 235 (7) would be rendered superfluous if, as urged by plaintiffs, the term “public” is read into the references to building service employees in section 231 (1).

Ill

Despite the primary importance of literal construction, we recognize that “[t]he courts may in a proper case indulge in a departure from literal construction and . . . sustain the legislative intention although it is contrary to the literal letter of the statute” (Statutes § 111). Thus, “the legislative history of an enactment may also be relevant and ‘is not to be ignored, even if words be clear’ {Riley v County of Broome, 95 NY2d 455, 463 [2000], quoting Statutes § 124, Comment, at 252; see Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328, 335 [2003]).

Considering the purpose of Labor Law article 9 and “the mischief sought to be remedied” (Statutes § 95; see § 96), we conclude that the prevailing wage requirement of Labor Law § 231 (1) applies to private buildings as long as the work is being done pursuant to a public work contract.

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Bluebook (online)
28 A.D.3d 1, 807 N.Y.S.2d 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feher-rubbish-removal-inc-v-new-york-state-department-of-labor-nyappdiv-2005.