Summary
holding that a low-income housing development was not for public use
Summary of this case from 120 W. Fayette v. BaltimoreOpinion
May 9, 1995
Appeal from the Supreme Court, New York County (Stephen Crane, J.).
The IAS Court properly found that the determination of the Comptroller had a rational basis relying upon two Opinion Letters issued by the Corporation Counsel, that the Greenpoint projects, which were publicly-financed, but privately-owned and constructed, housing for low-income tenants and homeless families and individuals, did not constitute "public works" subject to the prevailing wage rate under Labor Law § 220, and that the Comptroller's determination was neither arbitrary or capricious nor affected by an error of law (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 231).
Although Labor Law § 220 does not define the statutory term "public works", a substantial body of case law has held that the test for application of the prevailing wage requirement of section 220 is the direct or primary objective, purpose or function of the contract's work product (Matter of National R.R. Passenger Corp. v Hartnett, 169 A.D.2d 127, 130).
The fact that the public benefitted incidentally from the projects did not convert the construction into a "public works" contract, where, as here, the primary purpose for the construction was to benefit private developers, who retained both the ownership and the construction risk, since "[s]ignificant partial and even complete governmental funding of an improvement is insufficient to convert a private project into a public works" (supra, at 132).
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Williams, JJ.