Manuel De La Cruz, et al., Appellants,v.Caddell Dry Dock & Repair Co., Inc., et al., Respondents.BriefN.Y.May 30, 2013Bronx County Clerk’s Index No. 26220/02 Court of Appeals STATE OF NEW YORK MANUEL DE LA CRUZ, RAFAEL GUTIERREZ and FELIX MORET, individually and on behalf of all other persons similarly situated who were employed by CADDELL DRY DOCK & REPAIR CO. INC. and/or other entities affiliated or controlled by CADDELL DRY DOCK & REPAIR CO. INC. with respect to certain Public Works Projects awarded by THE CITY OF NEW YORK, THE NEW YORK CITY AND/OR NEW YORK STATE DEPARTMENT OF TRANSPORTATION, THE NEW YORK CITY DEPARTMENT OF SANITATION and/or other municipalities, public authorities or government entities, Plaintiffs-Appellants, against CADDELL DRY DOCK & REPAIR CO. INC., AMERICAN AUTOMOBILE INSURANCE COMPANY and AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Defendants-Respondents. To Be Argued By: James Emmet Murphy Time Requested: 30 Minutes BRIEF FOR PLAINTIFFS-APPELLANTS VIRGINIA & AMBINDER, LLP Attorneys for Plaintiffs-Appellants Trinity Centre 111 Broadway, Suite 1403 New York, New York 10006 212-943-9080 Of Counsel: James Emmet Murphy Lloyd R. Ambinder Date Completed: October 26, 2012 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 POINT I THE WORK PERFORMED BY PLAINTIFFS-APPELLANTS CONSTITUTED “PUBLIC WORK” . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. The type of labor Plaintiffs-Appellants provided upon the Vessel Repair Projects falls within the type of work contemplated under Labor Law § 220 . . . 12 B. Repairs to publicly owned vessels under the Vessel Repair Contracts constitute “public work” requiring payment of prevailing wages . . . . . . . . . . . . . . . . . . . . . . . . . 14 POINT II THE APPELLATE DIVISION’S HOLDING MISCONSTRUES THE DEFINITION OF THE TERM “CONSTRUCTION” . . . . 25 POINT III THE APPELLATE DIVISION MISINTERPRETED THIS COURT’S HOLDING IN BRUKHMAN V. GIULIANI . . . . . . . 36 A. Brukhman did not create a new definition of the term “public work” under New York law . . . . . . . . . . . . . . . . . . . 36 PAGE ii B. The Plaintiffs-Appellants were engaged in “construction” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 PAGE -iii- TABLE OF AUTHORITIES Cases Aguilar v. Henry Marine Service, Inc., 12 A.D.3d 542 (2d Dep’t 2004)..........................................................30 All Seasons Resorts, Inc. v. Abrams, 68 N.Y.2d 81 (1986)......................................................................19,21 Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327 (1988).........................................................................19 Austin v. City of New York, 258 N.Y. 113 (1932)......................................................................20,45 Brang Co. v. State Univ. Constr. Fund, 365 N.Y.S.2d 914, 47 A.D.2d 178 (3d Dept. 1965)...........................35 Brian Hosie’s Painting Co. v. Cato-Meridian Cent. Sch. Dist., 76 N.Y.2d 207 (1990).........................................................................33 Brukhman v. Giuliani, 94 N.Y.2d 387 (2000)..................................................................passim Brukhman v. Giuliani, 174 Misc. 2d 26 (Sup. Ct. N.Y. Co. 1997), rev’d, 253 A.D.2d 653 (1st Dep’t 1998), aff’d, 94 N.Y.2d 387 (2000)................................................................40 Bucci v. Village of Port Chester, 22 N.Y.2d 195 (1968).........................................................................45 Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415 (1909)......................................................................30-32 Carver v. State of New York, 24 Misc. 3d 602 (Sup.Ct.Kings.Co. April 17, 2009)..........................38 PAGE -iv- Carver v. State of New York, 926 N.Y.S.2d 559, 87 A.D.3d 25 (2nd Dept. 2011) ..........................37 Chaffee v. Union Dry Dock Co., 73 N.Y.S. 908, 68 A.D. 578 (4th Dept. 1902)...............................31-32 Cox v. NAP Construction Co., 10 N.Y.3d 592 (2008)...........................................................................9 Demeter Land Co. v. Florida Public Service Co., 99 Fla. 954 (1930)...............................................................................23 Duane Reade, Inc. v. Cardtronics, LP, 863 N.Y.S.2d 14, 54 A.D.3d 137 (1st Dept. 2008)...............................9 Ellis v. United States, 206 U.S. 246 (1907)............................................................................15 Ellis v. Common Council of Grand Rapids, 123 Mich. 567 (1900)..........................................................................22 Elwell v. Weiss, 2006 U.S. Dist.LEXIS 96934 (W.D.N.Y. 2006)…………………....37 Erie County Industrial Development Agency v. Roberts, 94 A.D.2d 532 (4th Dept. 1983), aff’d, 63 N.Y.2d 810 (1984).......................................................8,27-29 Falk v. Gerosa, 138 N.Y.S.2d 425 (Sup. Ct. N.Y. Co. 1954)......................................11 Fata v. S.A. Healy Co., 289 N.Y. 401 (1943).............................................................................9 Fink v. Lefkowitz, 47 N.Y.2d 567 (1979).........................................................................19 Flannigan v. Ryan, 85 N.Y.S. 947, 89 A.D. 624 (2d Dept. 1903).....................................31 PAGE -v- Galdamez v. Biordi Construction Corp., 13 Misc.3d 1224A, 2006 N.Y.Misc.LEXIS 2952, 2006 (Sup.Ct.N.Y.Co. 2006), aff’d, 855 N.Y.S.2d 104, 50 A.D.3d 357 (1st Dept. 2008).................35 Gaston v. Taylor, 274 N.Y. 359 (1937)......................................................................26,45 Golden v. Joseph, 307 N.Y. 62 (1954).............................................................................12 Jewett v. Commonwealth Bond Corp., 271 N.Y.S. 522, 241 A.D. 131 (1st Dep’t 1934)................................19 Lantry v. State of New York, 6 N.Y.3d 49 (2005)........................................................................20,45 Lee v. Astoria Generating Co., 13 N.Y.3d 382 (2009).........................................................................30 Lee v. City of Lynn, 223 Mass. 109 (1916)..........................................................................23 Long Island Lighting Co. v. Indus. Comm’r, 338 N.Y.S.2d 751, 40 A.D.2d 1003 (2d Dept. 1972), aff’d, 34 N.Y.2d 725 (1974)................................................................34 Madden v. Hughes, 93 N.Y.S. 324, 104 A.D.101 (2d Dept. 1905)....................................31 Marx v. Bragalini, 6 N.Y.2d 322 (1959)...........................................................................20 McGhee v. City of New York, 2002 N.Y. Misc. LEXIS 1065 (Sup.Ct.N.Y.Co. 2002)......................38 PAGE -vi- Miele v. Joseph, 280 A.D. 408 (1st Dep’t 1952), aff’d, 305 N.Y. 667 (1953)..................................................12,29-30,35 National R.R. Passenger Corp. v. Hartnett, 572 N.Y.S.2d 386, 169 A.D.2d 127 (3d Dept. 1991............................8 New York Charter School Assoc. v. Smith, 15 N.Y.3d 403 (2010)....................................................................10-11 New York State Labor Board v. Holland Laundry, Inc., 294 N.Y. 480 (1945)...........................................................................20 Onondaga-Cortland-Madison Bd. Of Coop. Educ. Servs. v.McGowan, 728 N.Y.S.2d 109, 285 A.D.2d 36 (3rd Dept. 2001)..........................38 Pansini Stone Setting, Inc. v. Crow & Sutton Assocs., 799 N.Y.S.2d 110, 20 A.D.3d 481 (2nd Dept. 2005).........................38 Penn Iron Co. v. William R. Trigg Co., 106 Va. 557 (1907)........................................................................23,24 Pinkwater v. Joseph, 88 N.Y.S.2d 895, 275 A.D. 757 (1st Dept. 1949), aff’d, 300 N.Y. 729 (1949)............................................................46-47 Regal Indus. Corp. v. Crum and Forster, Inc., 2005 PA Super. 425 (Pa.Super.Ct. 2005)......................................18,19 R.C. Overstreet v. Houston County, 365 S.W.2d 409 (Tex.Civ.App. 1963)................................................23 Sewer Environmental Contractors, Inc. v. Goldin, 469 N.Y.S.2d 339, 98 A.D.2d 606 (1st Dep’t 1983)..........................26 State v. A.H. Read Co., 240 P. 208 (Wyo. 1925)......................................................................23 PAGE -vii- Stone v. McGowan, 308 F. Supp.2d 79 (N.D.N.Y. 2004)...................................................37 Toles v. Schillaci, 2006 U.S. Dist.LEXIS 96178 (W.D.N.Y. 2006)................................37 Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24 (1910)...............................................................15,24,28,33 Twin State CCS Corp. v. Roberts, 72 N.Y.2d 897 (1988)....................................................23,28-29,46-47 Universities Research Ass’n. v. Coutu, 450 U.S. 754 (1981)............................................................................20 United States v. City of New York, 359 F.3d 83 (2nd Cir. 2004)................................................................37 United States v. Olympic Marine Services, Inc., 827 F.Supp. 1232 (E.D.Va. 1993).................................................17,18 U.S. for use of Standard Furniture Co. v. Henningsen, 40 Wash. 87 (1905).............................................................................24 Varsity Transit, Inc. v. Saporita, 418 N.Y.S.2d 667, 71 A.D.2d 643 (2d Dept. 1979), aff’d, 48 N.Y.2d 767 (1979)..........................................................46-47 Wallace Stevens, Inc. v. Lafourche Parish Hospital District No. 3, 323 S.2d 794 (La. 1975)......................................................................23 Weingarten v. Board of Trustees, 98 N.Y.2d 575 (2002)...........................................................................8 Winters v. City of Duluth, 82 Minn. 127 (1901)...........................................................................23 PAGE -viii- Wright v. Herb Wright Stucco, Inc., 72 A.D.2d 959 (4th Dept. 1979), rev’d, 50 N.Y.2d 837 (1980).................................................................9 State Constitution N.Y. State Const., art. I, § 17.................................................................passim State Statutes N. Y. Executive Law § 296...........................................................................38 N. Y. Human Rights Law .............................................................................38 N.Y. Labor Law § 220............................................................................passim N.Y. Labor Law § 220(3)(a).....................................................................20,33 N.Y. Labor Law § 220 (d) ............................................................................33 Local Laws New York City Administrative Code § 8-107(1)(a) ....................................38 Federal Statutes Heard Act, ch. 280, 28 Stat. 278 (1894), amended by ch. 778, 33 Stat. 81 (1905)……………………………......................................................23 United States Code 10 U.S.C. § 7299............................................................................................16 PAGE -ix- 29 U.S.C. § 201..............................................................................................37 40 U.S.C. § 3131............................................................................................18 40 U.S.C. § 3142......................................................................................15,21 42 U.S.C. § 2000d.........................................................................................37 Code of Federal Regulations 46 C.F.R. pt. 338 § 4(f)..................................................................................16 Other New York State Authorities 3 Rev. Rec., 1938 N.Y. Constitutional Convention.................................43,44 Other Federal Authorities Amendments to Federal Contract Labor Laws by the Federal Acquisition Streamlining Act of 1994, 61 Fed. Reg. 40714 (1996)..................................................................16 Opinion of the Attorney General, 38 U.S. Op. Atty. Gen. 418 (Mar. 6, 1936)...................................15,16 Opinion of the Comptroller General, 17 Comp. Gen. 585 (Jan. 21, 1938)....................................................16 United States Department of Labor Field Operations Handbook............................................................................................17 JURISDICTIONAL STATEMENT This Court has jurisdiction over this appeal under New York C.P.L.R. § 5602(a)(1)(i). This action originated in the Supreme Court, Bronx County. This is an appeal from a final determination of the Appellate Division, which is not appealable as of right. This appeal is taken pursuant to an August 28, 2012 grant of permission to appeal issued by this Court. PRELIMINARY STATEMENT For the reasons set forth below, it is respectfully requested that the Decision of the Appellate Division, First Department, entered on April 13, 2012, which affirmed an Order of the Supreme Court, Bronx County, dated May 19, 2010 (Guzman, J.), denying Appellants’ motion for partial summary judgment as to liability and granting Respondents’ Motion for Summary Judgment and dismissing Appellants’ Complaint, be reversed. 2 QUESTIONS PRESENTED (1) Did the Appellate Division err when it held that it was “constrained by the decision of the Court of Appeals in Brukhman v. Giuliani (94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)) to find that the repair of New York City vessels is not a ‘public work’ within the meaning of” New York Labor Law § 220? The question should be answered in the affirmative. (2) Did the work engaged in by Plaintiffs-Appellants for Defendants- Respondents - work which would unquestionably have required the payment of prevailing wages under Federal law, and would unquestionably have required the payment of prevailing wages under New York State law had it been performed on a building rather than a vessel - constitute “public work” covered by New York Labor Law § 220, et seq.? The question should be answered in the affirmative. (3) Are the Plaintiffs-Appellants entitled to be paid prevailing rate of wages and supplemental benefits for performing publicly financed repairs to publicly owned and publicly operated vessels? The question should be answered in the affirmative. 3 STATEMENT OF THE CASE This action arises out of Defendant-Respondent Caddell Dry Dock & Repair Co. Inc. (hereinafter “Caddell”)’s failure to pay its workers prevailing rates of wages and supplemental benefits 1 . Plaintiffs-Appellants herein consist of a certified class of several hundred (R 43-61) iron workers, painters, carpenters, electricians, and related construction tradespersons who provided labor to Caddell on publicly owned and operated vessels within the City of New York (the “Vessel Repair Projects”). Plaintiffs-Appellants performed renovation and repair projects on the Staten Island Ferry, New York City fire boats, and Department of Sanitation garbage barges. This work was performed pursuant to contracts (the “Vessel Repair Contracts”) between Caddell and the New York City Fire Department (“FDNY”), the New York City Department of Sanitation (“DOS”), and the New York City Department of Transportation (“DOT”) (collectively, the “Contracting Agencies”). Copies of these contracts are in the record at R 181-1379. Most of these Contracts expressly required Caddell to pay prevailing rates of wages and benefits to its workers pursuant to N.Y. Lab. Law § 220. For example, a contract between 1 Defendants-Respondents American Automobile Insurance Company and American Manufacturers Mutual Insurance Company (hereinafter “the Sureties”) issued labor and material payment bonds for some of the work Plaintiffs-Appellants performed for Caddell. Plaintiffs- Appellants’ cause of action for suretyship against the Sureties is derivative of their claims against Caddell. 4 Caddell and the New York City Department of Transportation for drydocking, inspection, and repairs to two specified ferry vessels provided in pertinent part: Prevailing Rate of Wages: The wages to be paid for a legal day's Work to laborers, workers, or mechanics employed upon the Work contemplated by this Contract or upon any materials to be used thereon shall not be less than the "prevailing rate of wage" as defined in Labor Law Section 220, and as fixed by the Comptroller in the attached Schedule of Wage Rates and in updated schedules thereof. The prevailing wage rates and supplemental benefits to be paid are those in effect at the time the Work is being performed. (R 285) (emphasis removed). That contract contained an eighty-eight page schedule of prevailing wage and benefit rates promulgated under section 220 of the Labor Law. (R 434-521). These rates were “solely for Workers, Laborers and Mechanics engaged by private contractors on New York City public work contracts,” and were required to “be annexed to and form part of the contract.” (R 439). The same contract provided that Caddell was required to “post . . . the City notice that this Project is a public works Project on which each worker is entitled to receive the prevailing wages and supplements for the occupation at which he or she is working.” (R 287) (emphasis removed). The contract further required Caddell to “submit . . . a written payroll certification, in the form provided by this Contract, of compliance with the prevailing wage . . . provisions . . . required by Labor Law Section 220.” (R 288). 5 The work required to be performed under the contracts consisted of traditional construction-trade renovation and repair work. For example, one contract was for the “Drydocking, Inspection and Related Repairs to two (2) of the Department of Transportation Ferry Vessels of the ‘Austen’ Class (FE-5682, FC- 5527A) in the City of New York” (R 662-943). This Contract required such construction-trade renovation and repair work as “Blast Cleaning Hull Exterior,” [sandblasting] (R 730); repainting of the exterior hull [painting] (R 731); spot- welding and replacement of “weather tight stainless steel doors” [ironwork] (R 750); and “short power cable relocation” [electrical work] (R 752). This contract also included a seventy three (73) page prevailing wage schedule. R 871-942. Pursuant to stipulation between the parties (“Stipulated Facts”), it is undisputed that: i) Caddell entered into the Vessel Repair Contracts; ii) that the work was performed by Caddell; iii) that the Contracting Agencies paid Caddell for the work; iv) that the Plaintiff Class members performed the work required under the Public Works Contracts; and v) that the wages paid to the Plaintiff Class ranged from $11.00 - $16.50 per hour in 1996 to $13.50 - $23.80 in 2006 (R 62- 63). It is undisputed that Caddell did not pay the wages called for under the prevailing wage schedules. On or about September 24, 2002, Plaintiffs-Appellants filed suit in Supreme Court, Bronx County, seeking to recover earned but unpaid prevailing wages and 6 supplemental benefits which Plaintiffs-Appellants alleged they were entitled to pursuant to the Vessel Repair Contracts (R 3130-3141). On April 1, 2004, Plaintiffs-Appellants’ claims were dismissed by order of the Hon. Justice Barry Salman of the Supreme Court, Bronx County (R 3149-3157). By order of the Appellate Division, First Department, entered October 25, 2005, Plaintiffs- Appellants’ claims for breach of contract and suretyship were reinstated (R 3178- 3179). Thereafter, the action was certified as a class action on January 3, 2007, by order of the Hon. Justice Wilma Guzman of the Supreme Court, Bronx County. After the completion of discovery, Defendants-Respondents moved for summary judgment dismissing Plaintiffs-Appellants’ Complaint, and Plaintiffs-Appellants moved for partial summary judgment as to liability. On May 19, 2010, the Hon. Justice Guzman denied Plaintiffs-Appellants’ motion for partial summary judgment, and granted Defendants-Respondents’ motion for summary judgment (R 3180-3186). Plaintiffs-Appellants appealed Justice Guzman’s decision to the Appellate Division, First Department. On April 12, 2012, the Appellate Division, First Department affirmed the Supreme Court’s grant of summary judgment to Defendants-Respondents (R 3762-3776). The Appellate Division held, and Plaintiffs-Appellants do not dispute, that “the sole issue to be determined on this appeal is whether the plaintiffs’ work, 7 repairing vessels, is ‘public work’” requiring payment of prevailing rates of wages and supplemental benefits under section 220 (R 3766, at p. 4). This issue has never before been addressed by this Court, and had never before been addressed by any Department of the Appellate Division. On August 28, 2012, this Court granted Plaintiffs-Appellants’ motion for leave to appeal (R 3761). 8 INTRODUCTION The sole issue to be determined in this action is whether the publicly financed repair of publicly owned vessels, operated for the public benefit, pursuant to contracts entered into between a public entity and a private contractor, constitutes “public work” within the ambit of N.Y. Lab. Law § 220. “The issue of what is a public works [sic] is viewed as essentially one of statutory reading and analysis.” Matter of National R.R. Passenger Corp. v. Hartnett, 572 N.Y.S.2d 386, 388, 169 A.D.2d 127, 130 (3d Dept. 1991); see also Matter of Erie County Indus. Dev. Agency v. Roberts, 465 N.Y.S.2d 301, 307, 94 A.D.2d 532, 541 307 (4th Dept. 1983), aff’d, 63 N.Y.2d 810 (1984). When this Court is “asked to resolve a question of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent… de novo review is appropriate.” Weingarten v. Board of Trustees, 98 N.Y.2d 575, 580 (2002) (internal citations and punctuation omitted). Most of the contracts entered into between Caddell and the Contracting Agencies contained provisions requiring the payment of prevailing rates of wages and supplemental benefits. See, e.g. R 105, at § 37.2.4. Many of the contracts also contained prevailing wage schedules annexed to and made a part of the contracts. See, e.g. R 434-522. As a matter of well-settled law, Plaintiffs-Appellants are the third party beneficiaries of those provisions, who may bring suit to recover for 9 their breach. See generally Cox v. Nap Construction Co., 10 N.Y.3d 592 (2008); Fata v. S.A. Healy Co., 289 N.Y. 401 (1943); Wright v. Herb Wright Stucco, Inc., 50 N.Y.2d 837 (1980), overruling and adopting dissent, 422 N.Y.S.2d 253, 72 A.D.2d 959 (4th Dept. 1979)). The Appellate Division affirmed the dismissal of Plaintiffs-Appellants’ Complaint because it determined that the work performed by Plaintiffs-Appellants was not “public work,” and the prevailing wage provisions of the contracts stated that they apply “solely for Workers, Laborers and Mechanics engaged by private contractors on New York City public work contracts” (see, e.g., R 439). In this appeal from an award of summary judgment in a breach-of-contract case, “the standard of review is for [the] Court to examine the contract’s language de novo.” Duane Reade, Inc. v. Cardtronics, LP, 863 N.Y.S.2d 14, 16, 54 A.D.3d 137, 140 (1st Dept. 2008) (citation omitted). The Appellate Division affirmed dismissal of Plaintiffs-Appellants’ Complaint, holding that it was “constrained by the decision of the Court of Appeals in Brukhman v. Giuliani, 94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000) to find that the repair of City vessels is not a ‘public work’ within the meaning of” Labor Law § 220. (R 3764). In so holding, the Appellate Division: i) misinterpreted this Court’s holding in Bruckhman; ii) erred in determining that public works must be “fixed;” iii) ignored over a century of precedent under 10 parallel Federal laws which hold that vessel construction and repair does constitute “public work;” and iv) misconstrued the definition of the term “construction” as that term is used in New York law. Accordingly, the Decision of the Appellate Division which affirmed the Order of the lower Court granting summary judgment to Defendants-Respondents should be reversed, and Plaintiffs-Appellants should be granted partial summary judgment as to liability. ARGUMENT POINT I THE WORK PERFORMED BY PLAINTIFFS-APPELLANTS CONSTITUTED “PUBLIC WORK” Article 1, § 17 of the New York State Constitution mandates that, “No laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work, shall… be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.” This Constitutional mandate is embodied in Labor Law § 220-3(a): “The wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages as hereinafter defined.” Nowhere in Labor Law § 220 is the term “public works” defined. As this Court recently held in New York Charter School Ass’n v. Smith, 15 N.Y.3d 403, 11 408 (2010), “two conditions must be met for the prevailing wage law to apply: (1) the public agency must be a party to a contract involving the employment of laborers, workmen, or mechanics, and (2) the contract must concern a public works project.” (internal punctuation omitted). It is undisputed that the first condition is met here. The second condition - whether repair of public vessels constitutes “public work” - is one of first impression in this Court. Prior to this action, only one New York court had ever addressed the issue of whether vessel repair constituted “public work” requiring the payment of prevailing wages. In Falk v. Gerosa, 138 N.Y.S.2d 425 (Sup.Ct.N.Y.Co. 1954), the Court overturned a determination of the New York City Comptroller that Labor Law § 220 wages did not have to be paid to workers who “clean, scale and paint ships; perform heavy manual labor; [and] perform related work,” id. at 426, on City owned and operated vessels. Recognizing that “Petitioner and others similarly situated… make repairs, i.e., scale and paint ships” and, while a “ship may not be a building, it has been considered a structure,” id., the Court found that “the determination of the [Comptroller] was unreasonable and must therefore be annulled.” Id. at 427. The Court determined that workers performing vessel repair work were entitled to prevailing wages under § 220, and found that “their work is ‘as closely related to the preservation and maintenance of physical structures as 12 were the sign painters in Miele v. Joseph’ [305 N.Y. 667 (1953)] 2 ,” Id. at 426 (quoting Golden v. Joseph, 307 N.Y. 62 (1954)). In the instant action, the Appellate Division rejected the holding of the Falk Court. However, it also rejected - without comment -over a century of Federal precedent holding vessel repair work to be “public work.” Part A: The type of labor Plaintiffs-Appellants provided upon the Vessel Repair Projects falls within the type of work contemplated under Labor Law § 220 New York Labor Law § 220-3 provides that the “wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages as hereinafter defined.” It is clear that the work performed by the Plaintiff class here constitutes the work of “laborers, workmen, or mechanics” - which include workers within those trades set forth in the Prevailing Wage Schedules annexed to the Public Works Contracts, such as Painters, Sandblasters, Iron Workers, Electricians, and Carpenters. See, e.g. Prevailing Wage Schedule at R 871-942. The President of Caddell, Steven P. Kalil, testified at his deposition that Caddell’s employees such as Plaintiffs-Appellants perform work: cutting, burning, 2 In Miele v. Joseph, this Court found that “the painting or lettering of signs and other information and identification legends on public buildings, piers, streets and public structures… [some of which] is done separately on signs which are later attached to public structures” constituted “public work” subject to Labor Law § 220. Meile, supra, 113 N.Y.S.2d 689, 690, 280 A.D. 408, 409 (1st Dept. 1952), aff’d 305 N.Y. 667 (1953). 13 and welding metal; “work[ing] with wood [and performing] interior joinery;” performing electrical work; painting ships; sand blasting; and pipefitting. (R 1709- 1712). Thomas Nodell, former head of the Labor Law Bureau of the Office of the New York City Comptroller and the individual tasked with creating and promulgating the Prevailing Wage Schedules attached to the Public Works Contracts (see, e.g. R 967), testified that the work described by Kalil would fall under traditionally recognized trade classifications such as Iron Worker, Painter, Carpenter, Electrician, and Pipe Fitter (R 2227-2229) - each of which is included as a Construction Trade in the Labor Law § 220 Prevailing Wage Schedules at issue 3 . Plaintiff-Appellant Class members Manuel De La Cruz and Gary Trivelli affirmed that they performed work for Caddell as Structural Iron Workers and Electricians, respectively. See De La Cruz Affidavit, R 71-74; Trivelli Affidavit, R 79-81. Mr. De La Cruz testified that he performed tasks such as cutting, placing, and welding structural iron members (R 72, ¶ 3), which Mr. Nodell specifically testified was the work of a Structural Iron Worker. (R 2228). Mr. Trivelli 3 Mr. Nodell further testified that he was employed by the Office of the Comptroller of the City of New York for approximately 30 years, and that he was tasked with the duty to make determinations as to the trade classifications of workers pursuant to Labor Law § 220 many times a day over his thirty year tenure with the Comptroller’s Office. (R 2225-2227). Mr. Nodell is the individual responsible for promulgating the Prevailing Wage Schedules included in most of the Public Works Contracts at issue (see, e.g. R 873, R 967, R 1077, R 1183), establishing his particular expertise in the area of trade classification for work performed on Public Works Projects. 14 performed work installing electrical cabling, circuit breaker boxes, and lighting fixtures on New York City vessels for both Caddell and, later, directly as an employee of the New York City Department of Transportation. (R 79-80). Critically, Mr. Trivelli performed the identical work on the identical vessels while employed by both Caddell and the DOT. However, while employed by DOT, Mr. Trivelli was paid the published rate for an electrician under the Labor Law § 220 prevailing wage schedule, of $44.00 per hour plus supplemental benefits. See paystubs, R 91-92; prevailing wage schedule, R 96. While employed by Caddell, Mr. Trivelli was never paid more than approximately $19.00 per hour. It is beyond dispute that Plaintiffs were the type of “laborers, workmen or mechanics” required to be paid prevailing rates of wages and supplemental benefits under Labor Law § 220(3) for work performed on public works projects. Part B: Repairs to publicly owned vessels under the Vessel Repair Contracts constitute “public work” requiring payment of prevailing wages. Authority prior to the Appellate Division’s holding was virtually unanimous in determining that the type of work Caddell performed under the Public Works Contracts constitutes “Public Work” requiring the payment of prevailing wages and supplemental benefits. Most notably, Federal law clearly holds that ship repair constitutes “public work” subject to prevailing wage laws. Over a century ago, the 15 United States Supreme Court held that repairs to Federally owned vessels constitute “public works.” As stated by Justice Oliver Wendell Holmes, Jr.: The argument that the vessel was not a public work loses most of its force when it appears that the title was in the United States as soon as the first payment was made. Of course, public works usually are of a permanent nature, and that fact leads to a certain degree of association between the notion of permanence and the phrase. But the association is only empirical, not one of logic. Whether a work is public or not does not depend upon its being attached to the soil; if it belongs to the representative of the public, it is public, and we do not think that the arbitrary association that we have mentioned amounts to a coalescence of the more limited idea with speech so absolute that we are bound to read ‘any public work’ as confined to work on land. Title Guar. & Trust Co. v. Crane Co., 219 U.S. 24, 33 (1910) (emphasis added). Throughout the ensuing decades, Federal authority has consistently held that repair of Federal vessels constitutes “public work” subject to the prevailing wage requirements of the Davis-Bacon Act, 40 U.S.C. § 3142, the Federal analog to New York’s Labor Law § 220. Soon after the passage of the Davis-Bacon Act, its application to vessel repair was explicitly stated by the U.S. Attorney General: While the term ‘public works' has been defined as ‘all fixed works contracted for public use, as railways, docks, canals, waterworks, roads, etc.,’ Century Dictionary (34 Op. 257, 259), Attorney General Wickersham (29 Op. 395) on the authority of Ellis v. United States, 206 U. S. 246, and Title Guaranty & Trust Co. v. Crane Co., supra, held, and in my opinion correctly, that the employment of laborers and mechanics in making repairs to Government vessels is employment upon a public work of the United States within the language ‘any of the public works of the United States' in the Eight Hour Law of August 1, 1892 (27 Stat. 340). In view of the obvious purpose of [the Davis Bacon Act] to protect minimum wages to be 16 paid to laborers and mechanics, it should not be given any narrower construction. 38 Op. Att’y Gen. 418, 422-423; 1936 WL 1683 (U.S.A.G.) (1936) (emphasis added). Included in the Record at (R 110-113). This position has been reaffirmed numerous times. See generally U.S. Comptroller General Opinion, 17 Comp. Gen. 585, 586 ; 1938 WL 568 (1938) (“work under the proposed contract [drydocking, cleaning, painting, and repairing a lighthouse tender] was for ‘the construction or repair of a public [w]ork’”) (included in the Record at R 114-116); Amendments to Federal Contract Labor Laws by The Federal Acquisition Streamlining Act of 1994, 61 Fed. Reg. 40714, 40715 (Dep’t of Labor August 5, 1996) (“Marine vessels have historically been regarded as ‘public works’ for purposes of the DBA. The DBA has accordingly been applied to contracts for the construction, alteration, or repair of Federally- owned or operated marine vessels”) 4 (included in the Record at R 117-120); Procedure for Securing Competitive Bids, 46 C.F.R. Pt. 338 § 4(f) (“Vessel repair work contracted for by representatives of the National Shipping Authority is 4 Under 10 U.S.C. § 7299, “naval vessels” - vessels of the United States Navy and Coast Guard - are specifically exempted from the DBA, while contracts for other Federal vessels remain governed by the DBA. The Department of Labor (“DOL”) has recognized that this specific, limited exemption applies only to Navy and Coast Guard vessels; when this section of the Code was temporarily repealed from 1994 through 1996, the DOL acknowledged that “[t]he repeal of 10 U.S.C. 7299, however, caused the provisions of DBA to become applicable to Navy and Coast Guard vessels as with all other Federally-owned or operated marine vessels,” (61 Fed. Reg. 40715, supra). 17 subject to the provisions of the Davis-Bacon Act”) (included in the Record at R 121-122). Further, the United States Department of Labor, the agency tasked with administering the prevailing wage requirements of the Davis Bacon Act, specifically directs its agents to enforce prevailing wage requirements on dry-dock and repair work upon Federally owned vessels. The Department of Labor issues to its field investigators a Field Operations Handbook (R 123-175), which serves to provide “Wage and Hour Division (WHD) investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance.” The Field Operations Handbook contains, at § 15d08, a provision entitled, “Shipbuilding, alteration, repair, and maintenance” (R 139). This provision specifically dictates that the “building, alteration, and repair of ships under Government contract is work performed upon ‘public works’ within the meaning of the Davis-Bacon Act.” Recent judicial decisions interpreting Federal law in both Federal and State courts have continued to hold that construction and repair of Federally owned vessels constitutes “public work.” In United States v. Olympic Marine Services, Inc., 827 F.Supp. 1232 (E.D. Va. 1993), the court was tasked with determining whether “contracts with defendant shipyard to install deck coverings on three different ships,” id. at 1233, as subcontracts of a general contract between the 18 shipyard and the United States, constituted “public work” governed by the Miller Act, 40 U.S.C. § 3131(b). The Miller Act requires the provision of labor and material payment bonds upon all “public works” of the United States. Recognizing that “[t]he statute on its face applies to ‘the construction, alteration, or repair of any public building or public work of the United States,” Olympic Marine Services, Inc., supra, 827 F.Supp. at 1233, the court held that the repair of the vessels constituted “public work,” as the Miller Act’s definition “cover[ed] the repair of ships owned by the United States.” The Court further noted that “[t]he public in the form of the United States, is furnishing financial assistance to the repair, and the repair itself is being done, apparently, to allow the ships to remain in or return to public service.” id. at 1234. Similarly, the Superior Court of Pennsylvania, in determining an appeal of a lower court’s decision that construction of publicly owned vessels constituted “public work” under the Miller Act, affirmed that vessel construction and repair constitutes “public work.” In Regal Indus. Corp. v. Crum and Forster, Inc., 2005 PA Super. 425 (Pa. Super. Ct. 2005), the Pennsylvania Superior Court recognized that “[t]o determine whether the Miller Act applies, the dispositive issue is whether the underlying contract for which the payment bond was issued is for the ‘construction, alteration, or repair of any public building or public work of the Federal Government.’ See 40 U.S.C.S. § 3131(b).” Regal Indus. Corp., 890 PA 19 Super. at 400. “The underlying contract between Wilhelm and the United States Army Corps of Engineers provided that Wilhelm was to ‘design, construct, test, and deliver’ four inland river style barges… The payment bond upon which Appellant’s claims are predicated was issued pursuant to that contract. Thus, the bond was clearly issued to insure payment on a construction contract.” id. at 400 (emphasis added). Examining the applicable authorities, the Pennsylvania Superior Court held that “the construction of the four inland river style barges constitutes a ‘public work’ within the meaning of the Miller Act.” id. at 402. This Court is not bound by federal authority on questions of New York law. However, “a decision of the Supreme Court of the United States . . . is entitled to great weight by” New York Courts considering similar issues. Jewett v. Commonwealth Bond Corp., 271 N.Y.S. 522, 526, 241 A.D. 131, 133 (1st Dept. 1934). Where Congress and the New York Legislature enact similar legislation, the New York statute “should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justify such a result.” Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327, 335 (1988) (discussing antitrust statutes). See also All Seasons Resorts, Inc. v. Abrams, 68 N.Y.2d 81, 86-87 (1986) (securities statutes); Fink v. Lefkowitz, 47 N.Y.2d 567, 572 (1979) (freedom of information statutes); 20 Marx v. Bragalini, 6 N.Y.2d 322, 333 (1959) (tax statutes); New York State Labor Bd. v. Holland Laundry, Inc., 294 N.Y. 480 (1945) (labor statutes). It cannot be argued that, as a matter of public policy, the interests protected by New York Labor Law § 220 are any narrower than those protected by the Davis-Bacon Act, 40 U.S.C. § 3142. As the Supreme Court has recognized, the Davis-Bacon Act “was designed to protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area.” Universities Research Ass’n., v. Coutu, 450 U.S. 754, 773 (1981). This Court has recognized that this is precisely the same goal sought by Labor Law § 220: “Labor Law § 220 implements the constitutional mandate that contractors engaged in public projects pay their workers wages and supplements which ‘shall be not less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work… is performed.’” Lantry v. State of New York, 6 N.Y.3d 49, 54 (2005) (quoting Labor Law § 220). Indeed, the wage protections to workers embodied in Labor Law § 220 are even more expansive, as Labor Law § 220 “is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics.” Austin v. City of New York, 258 N.Y. 113, 117 (1932). Looking to the statutory language, Labor Law § 220-3(a) requires that “[t]he wages to be paid for a legal day's work, as hereinbefore defined, to laborers, workmen or 21 mechanics upon such public works, shall be not less than the prevailing rate of wages as hereinafter defined.” Likewise, 40 U.S.C. § 3142 (a), (b) requires that: The advertised specifications for every contract… for construction, alteration, or repair, including painting and decorating, of public buildings and public works of the Government or the District of Columbia that are located in a State or the District of Columbia and which requires or involves the employment of mechanics or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics… The minimum wages shall be based on the wages the Secretary of Labor determines to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the civil subdivision of the State in which the work is to be performed, or in the District of Columbia if the work is to be performed there. While the prevailing wage provisions of Labor Law § 220 and the Davis Bacon Act are not identical, they are extremely similar, and it is clear that their purpose is the same. This Court looks to Federal precedent addressing Federal analogs of New York statutes where “[a]lthough the language of the State and Federal statutes is not identical, the remedial purpose is the same.” All Seasons Resorts, supra, 68 N.Y.2d at 87 (1986). Here, it is beyond dispute that Federal law would require payment of prevailing rates of wages and supplemental benefits were this a Federally financed repair of a Federally owned vessel. The Appellate Division gave no justification for its holding that Labor Law § 220 should be interpreted any more narrowly than 40 U.S.C. § 3142. 22 Defendants-Respondents were able to provide only one prior authority on the issue of whether vessel repair constitutes “public work” which held to the contrary. They submitted a 1980 opinion letter of the Michigan Attorney General (R 1686-1691) interpreting the applicability of bonding requirements for purchase of a vessel under Michigan law. That Opinion Letter relied primarily on the Michigan Supreme Court case of Ellis v. Common Council of Grand Rapids, 123 Mich. 567 (1900), in determining that vessels do not constitute “public works.” Ellis concerned a Michigan statute governing employment of Civil War veterans. Section 1 of the statute gave hiring preference to such veterans “in all public departments of municipal corporations, and upon the public works of the State.” Id. at 569. Section 2 of the statute provided that, in general, no such veteran “holding an office or employment in the public works of any city or town shall be removed.” Id. The plaintiff, who held an unspecified job with the City of Grand Rapids, sought to invoke the protections of section 2 on the ground that the term “public works” included all “public departments.” Id. The sole holding of the case was that the terms “public works” and “public departments” were not coextensive, and thus the plaintiff, as an employee of a public department, was not protected by section 2. Id. The Court in Ellis referred to a dictionary definition of “public works” as: “all fixed works constructed for public use, as railways, docks, canals, waterworks, 23 roads, etc.” Id. However, the distinction raised by the Ellis Court was between employment on “public works” and employment in “public departments,” which they defined as “a division of official duties or functions… the department of state, of the treasury, etc.” Clearly, this distinction did not rely upon the definition of the word “fixed.” In determining that public works must be “fixed,” the Michigan Attorney General’s opinion cites a number of cases similarly using definitions of the term “public work” including the word “fixed,” where that word was of no moment to the issue being addressed. All but two of these cases involve work on buildings, roads, or other necessarily “fixed” objects, and thus the term “fixed” is of no moment whatsoever in any of them 5 . Crucially, only two of the cases cited to by the Michigan Attorney General involved projects which were not “fixed.” One, Penn Iron Co. v. William R. Trigg Co., 106 Va. 557 (1907), stated that construction or repair of a vessel did not constitute “public work” under the Heard Act, c. 280, 28 Stat. 278 (1894) amended by c. 778, 33 Stat. 81 (1905), as a vessel was not “fixed.” However, this holding was expressly rejected by the United States 5 See R.C. Overstreet v. Houston County, 365 S.W.2d 409 (Tex.Civ.App. 1963); Lee v. City of Lynn, 223 Mass. 109 (1916); State v. A.H. Read Co., 240 P. 208 (Wyo. 1925); Demeter Land Co. v. Florida Public Service Co., 99 Fla. 954 (1930); Winters v. City of Duluth, 82 Minn. 127 (1901). Wallace Stevens, Inc. v. Lafourche Parish Hospital District No. 3, 323 S.2d 794 (La. 1975), involved a contract for telephone service, but no contracting for the purchase or installation of telephone equipment, which would require payment of prevailing wages under New York law (Twin State CCS Corporation v. Roberts, 72 N.Y.2d 897 (1988)). 24 Supreme Court in Title Guar. and Trust Co. v. Crane Co., 219 U.S. 24 (1910), where the Supreme Court specifically held that construction and repair of publicly owned vessels constitutes “public work” under the Heard Act: “Whether a work is public or not does not depend upon its being attached to the soil; if it belongs to the representative of the public, it is public, and we [are not] bound to read ‘any public work’ as confined to work on land.” Id. at 33. As Penn Iron Co.’s holding was expressly abrogated by the United States Supreme Court, the Michigan Attorney General’s reliance upon it was clearly erroneous. The only other case mentioned by the Michigan Attorney General, U.S. for use of Standard Furniture Co. v. Henningsen, 40 Wash. 87 (1905), specifically holds that “public works” need not be fixed, despite the dictionary definition: “[W]e conclude that the meaning of the words ‘public work’ in the act is broader and more comprehensive than the dictionary meaning given to ‘public works’; that public work is susceptible of application to any constructive work of a public character, and is not limited to fixed works.” id. at 93. As such, the Michigan Attorney General’s decision that construction upon vessels is not “public work” was based solely upon cases involving only actually “fixed” objects - where the word “fixed” in a dictionary definition was necessarily incidental to the holding. The Michigan Attorney General also ignored the cases where the work was not “fixed” - Title Guarantee and Standard Furniture, both of which held that “public 25 works” need not be fixed to the soil. Accordingly, it is respectfully submitted that this Court should give no weight to the Michigan Attorney General’s opinion letter, especially in light of the overwhelming weight of Federal authority holding that publicly financed construction and repair of publicly owned vessels constitutes “public work.” POINT II THE APPELLATE DIVISION’S HOLDING MISCONSTRUES THE DEFINITION OF THE TERM “CONSTRUCTION” The Appellate Division based its determination largely on a mistaken belief that in order to constitute “construction,” a public work project must be performed on a “fixed structure.” (R 3767). Simply put, there is no authority supporting the Appellate Division’s determination that construction work performed on a structure which is not permanently affixed to the soil ceases to be construction work. Defendants-Respondents’ principal testified that its workers performed work cutting, burning, and welding metal; “work[ing] with wood [and performing] interior joinery;” performing electrical work; painting ships; sand blasting; and pipefitting (R 1709-1712) upon the publicly owned vessels at issue. It is beyond question that this constitutes construction-trade work (see, e.g. Prevailing Wage Schedule, R 871-942). The fact that Plaintiffs-Appellants’ work was performed in 26 renovating and repairing vessels, rather than constructing new vessels, is of no moment, as the prevailing wage provisions of Labor Law § 220 apply where “work relates to repairing and maintaining public works rather than constructing them.” Gaston v. Taylor, 274 N.Y. 359, 363 (1937); see also Sewer Envtl. Contractors, Inc. v. Goldin, 469 N.Y.S.2d 339, 98 A.D.2d 606 (1st Dept. 1983) (“The ‘repair’ of a public work is a public work”). Nevertheless, the Appellate Division found that the Plaintiffs-Appellants’ work did not constitute “construction,” holding that “it is construction or construction-like activity on a fixed structure, rather than a finding of public purpose, that is the essential component of any determination as to a project being a ‘public work.’” (R 3778). In citing to this Court’s determination in Brukhman v. Giuliani, 94 N.Y.2d 387 (2000), the Appellate Division stated that: the fixed nature of “public work” projects is emphasized in the Court's reference to the debate record of the 1938 Constitutional Convention. The Court referenced phrases used in the debate to limit the definition of ‘public work’ to “constructing a public building,” and “erecting an office building” and “highway construction.” (R 3770) (emphasis in original) Nowhere in the Constitutional Convention debate is there any indication that the drafters of Article 1, § 17 sought to make a distinction between construction, renovation, or repair which was on an object affixed to the soil and one which was not. Indeed, the plain language of Article 1, § 17 strongly indicates that they very 27 much intended its protections to apply to construction of objects which were not fixed to the soil: No laborer, worker or mechanic, in the employ of a contractor or sub- contractor engaged in the performance of any public work, shall… be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used. (emphasis added) Article 1, § 17’s language concerning “the locality within the state where such public work is to be situated, erected or used” strongly suggests that it intends to cover public works which are not fixed to the soil - that is, public works which are neither situated nor erected, but rather are used. The Appellate Division’s determination below that an object must be “fixed” to be a public work stems from the language of this Court’s ruling in Erie County Indus. Dev. Agency v. Roberts, 465.N.Y.S.2d 301, 94 A.D.2d 532 (4th Dept. 1983), aff’d 63 N.Y.2d 810 (1984), which used a dictionary definition of the term “public work” which included the word “fixed.” That word was of no moment to the decision, as the work at issue in Erie County involved construction of a privately owned, fixed building. According to the Appellate Division’s decision here below, “the Court of Appeals affirmed the Fourth Department in rejecting a prevailing wage claim in Matter of Erie Co. Indus. Dev. Agency… This included the Fourth Department's finding that ‘public works’ has a generally accepted plain 28 meaning found in dictionaries, including Black's Law Dictionary, as ‘fixed works constructed for public use.’” (R 3778) Erie County cited Webster’s New World Dictionary and Black’s Law Dictionary (5th ed. 1979) for the proposition that “public works” are “fixed works.” That proposition is directly contrary to the United States Supreme Court’s decision in Title Guar. & Trust Co. v. Crane Co., 219 U.S. 24 (1910), that “public works” include mobile structures such as ships. It is difficult to fathom why a reputable dictionary - particularly Black’s, which is published specifically for lawyers throughout the country - would adopt a definition that directly contravenes a decision of the Supreme Court of the United States, without even noting that difference or including an alternate definition. In any event, as a matter of judicial comity, this Court should treat a decision of the Supreme Court of the United States as far more persuasive authority than other non-binding sources such as Webster’s New World Dictionary or Black’s Law Dictionary. Furthermore, as the Supreme Court observed below, more recent editions of Webster’s and Black’s define “public works” without using the word “fixed.” (A 10.) Contrary to the Appellate Division’s holding, nowhere in New York law is there any requirement that a “public work” need only be performed on public property, or on a “fixed” object. The Third Department Appellate Division’s decision which this Court affirmed in Twin States specifically recognized that the 29 central holding of Erie County is that the term “public work” shall not encompass private construction projects, rather than any concept of a project being “fixed.” Twin State CCS Corp. v. Roberts, 511 N.Y.S.2d 958, 125 A.D.2d 18 (3d Dept. 1987); aff’d in relevant part, 72 N.Y.2d 897 (1988). There, the Third Department clarified the holding of the Erie County Court, in recognizing that the private ownership and private purpose of the project was the key element in finding the project to be exempt from the payment of prevailing wages and supplemental benefits: We similarly find unpersuasive petitioner's arguments that the contract was not “public work” to which Labor Law § 220 applies. Reliance upon Matter of Erie County Ind. Dev. Agency v. Roberts… is misplaced. Both of those cases held that private construction projects financed through industrial development agency bonds were not “public work” for the purposes of Labor Law § 220. Twin State CCS Corp., 511 N.Y.S.2d at 959. 125 A.D.2d at 20 Here, as in Twin State CCS Corp., the projects at issue - publicly owned vessels operated by municipal agencies being repaired pursuant to public contracts using public funds - are public, rather than private, in nature. Indeed, this Court has specifically held that it is the public nature of a construction project, rather than its being affixed to the soil, which determines whether it constitutes a public work. See Meile v. Joseph, 113 N.Y.S.2d 689, 690, 180 A.D. 408, 409 (1st Dept. 1952), aff’d 305 N.Y. 667 (1953) (“the painting or lettering of signs and other information and identification legends on public buildings, streets and public structures” 30 (emphasis added) constituted “public work” subject to Section 220 of the Labor Law, regardless of the fact that some work was “painted elsewhere and later attached to the structure”). Under the plain language of Meile, work on public structures constitutes public work requiring payment of prevailing wages. Under New York law, vessels constitute “structures,” and dry-dock repair upon vessels constitutes “construction work” upon a “structure.” In Aguilar v. Henry Marine Service, Inc., 785 N.Y.S.2d 95, 12 A.D.3d 542 (2d Dept. 2004) 6 a worker performing “dry dock services on the Robert IV, a tugboat,” sought damages “arising out of a construction-site accident.” (id. at 542-543). The Second Department, noting that the work involved “the removal and replacement of the bulwark, reconditioning the wheels and shafts, installing new fendering, engine overhaul, painting and zincs, tank cleaning, and installing new deck winches” - similar to the work at issue here - found that Plaintiff “undertook an enumerated activity under a construction contract,” id. at 543, and was engaged in “altering a structure.” id. This Court, in Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415 (1909), held that an object upon which work is being performed need not be “fixed” in order to be considered a “structure” subject to the Labor Law. In Caddy, work was being performed upon a subway car “‘jacked up’ about 6 feet above the 6 Abrogated on other grounds, Lee v. Astoria Generating Co., 13 N.Y.3d 382 (2009). 31 floor” in Defendants’ repair shop in Manhattan. id. at 417. The Caddy Court noted that “[i]n the case at bar the question is whether the car above described is a ‘structure’ within the meaning of the law.” id. at 719. The Defendants in Caddy argued that “the general word ‘structure’ must be limited by and comprehended within the specific terms ‘house’ and ‘building,’ [which appeared in the statute] and when thus construed it necessarily excludes all structures which do not fall within the generic description of houses and buildings.” id. at 419. In rejecting the Caddy Defendants’ argument, this Court specifically refused to follow dictionary definitions to define “structures” under the Labor Law: “In cases like this, lexicographers’ definitions are useful as guideposts, but they do not take us to our destination. The statutory meaning of a word or phrase must be gathered from the purpose for which the law containing it was enacted.” id. at 420. The Court then went on to cite, with approval, Appellate Division decisions holding that workers installing beams between bulkheads in a scow were engaged in construction upon a structure, (Madden v. Hughes, 93 N.Y.S. 324, 104 A.D. 101 (2d Dept. 1905)); that a pier of the Williamsburg Bridge was also a structure (Flannigan v. Ryan, 85 N.Y.S. 947, 89 A.D. 624 (2d Dept. 1903)); and that a vessel in dry-dock constitutes a “structure” under the Labor Law, and a worker “putting in place of heavy plates of iron” within the vessel was engaged in “construction” on a structure (Chaffee v. Union Dry Dock Co., 73 32 N.Y.S. 908, 68 A.D. 578 (4th Dept. 1902) (emphasis added)). The Caddy Court then held that “[t]hese cases differ just enough in circumstance to indicate the limitless variety of objects which may be described as structures.” Caddy, 195 N.Y. at 421. The Caddy Court then specifically rejected the argument that a structure need be “fixed” to be subject to the Labor Law. In holding the subway car at issue to be a “structure,” the Court stated: If it had been built of the same shape and dimensions upon wooden posts or stone piers sunk into the ground, and had been intended for a dwelling or a workshop, it would clearly have been a structure. The fact that it happens to have been a thing called a ‘railroad car’ when in use does not exclude it from the category of structures when it is temporarily necessary to use scaffolding thereon in the process of erecting, repairing, altering, or painting. Id. at 421 This language from Caddy displays the essential flaw in the Appellate Division’s holding: if the Staten Island Ferry were to be decommissioned, and moved to a permanent location on land to undergo a complete renovation for use as a public school or museum, there could be no doubt that the renovation work Plaintiffs-Appellants performed upon it would be “public work.” The United States Supreme Court recognized that this lexicographical flaw in the use of the word “fixed” when applied to vessel repair as public work was illogical: Of course, public works usually are of a permanent nature, and that fact leads to a certain degree of association between the notion of 33 permanence and the phrase. But the association is only empirical, not one of logic. Whether a work is public or not does not depend upon its being attached to the soil; if it belongs to the representative of the public, it is public, and we do not think that the arbitrary association that we have mentioned amounts to a coalescence of the more limited idea with speech so absolute that we are bound to read ‘any public work’ as confined to work on land. Title Guar. & Trust Co., supra, 219 U.S. at 33 (1910) (emphasis added) The only reason provided by the Appellate Division for its “arbitrary association” between public works and fixed objects comes from the language of a separate section of Labor Law § 220: Indeed, Labor Law § 220(3-a)(a) further supports the defendants' argument that the statute plainly reflects legislative intent to limit public work to the construction, repair and maintenance of fixed structures. The specific section which relates to the setting of wages directs that the department for whom the work is done shall file a proper classification of the workers involved in the “public work” by taking into account whether the work is “heavy and highway, building, sewer and water, tunnel work or residential.” See Labor Law § 220(3-a)(a)(i). (R 3775) This Court has previously recognized that amendments to Labor Law § 220 were intended to expand upon previous, more limited versions of Labor Law § 220 to encompass all “public works,” without limitation to specific classes of projects. In Brian Hosie’s Painting Co. v. Cato-Meridian Cent. Sch. Dist., 76 N.Y.2d 207, 210-211 (1990), this Court recognized that Labor Law § 220, as amended, applies to “all public work”: Section 220-d of the Labor Law, when first enacted, applied only to highway projects (see, Mem of State Industrial Commr to Governor, 34 Bill Jacket, L 1933, ch 733 [“(t)he effect of this bill is to place all competitors for highway construction projects on an equal basis as affects the wages for common labor”]). The statute expressly applied to contracts entered into by the "state, county, town and/or village", presumably because these were the only public entities engaged in highway construction. In 1934, however, article 8 was expanded to include all types of “public work” and the statute was amended to replace the reference to “highway construction” with “public work” (L 1934, ch 747). The legislative history surrounding this amendment is not detailed, but the basic purpose of the bill is evident: “Based on the experience of this Department [of Labor] an amendment is herewith presented to eliminate the restriction of the payment of this hourly rate of wage to highways and extending it to laborers on all public work construction * * * We know of no reason why laborers on highway work should receive a different minimum rate of wage than similar class of help on other public works construction in the same neighborhood”. (Mem of Dept of Labor, Bill Jacket, L 1934, ch 747.) The Appellate Division below appeared to imply that if a project cannot fit within one of those definitions - “heavy and highway, building, sewer and water, tunnel work or residential” - it cannot be a public work. This is despite its citation to a decision of this Court clearly stating that a project which was neither heavy and highway, building, sewer and water, tunnel work, nor residential constituted a “public work” requiring payment of prevailing wages. See Matter of Long Island Lighting Co. v. Indus. Comm’r, 338 N.Y.S.2d 751, 40 A.D.2d 1003 (2d Dept. 1972); aff’d 34 N.Y.2d 725 (1974). There, the Appellate Division held that the installation of street lights constituted “construction of fixtures for a public object,” and constituted a “public work” requiring payment of prevailing wages. Id., 338 N.Y.S.2d at 752, 40 A.D.2d at 1004. 35 This was far from the only time a project was held to be a “public work” requiring payment of prevailing wages despite not falling within the definition of “heavy and highway, building, sewer and water, tunnel work or residential.” See, e.g. Brang Co. v. State Univ. Constr. Fund, 365 N.Y.S.2d 914, 47 A.D.2d 178 (3d Dept. 1965) (a “tree planting project at the State University College of Forestry at Syracuse” constituted a public works project requiring payment of prevailing wages). Indeed, this Court has previously determined that the status of a project as a “public work” does not depend on its fitting into a specifically delineated list of project types: “The making of a public sign is public work. Depth, height, thickness, tensile strength or material are not the exclusive criteria of a structure having specific and permanent public usefulness. The sign carries out one part of the function of public safety and convenience; the bridge, the sidewalk, the traffic control signal, the radio antenna and the park bench carry out other parts of a similar function.” Miele v. Joseph, 113 N.Y.S.2d 689, 690, 280 A.D. 408, 409 (1st Dept. 1952), aff’d 305 N.Y. 667 (1953). The installation of public sidewalks is not “heavy and highway, building, sewer and water, tunnel work or residential;” nevertheless, it clearly constitutes public work requiring payment of prevailing wages. See, e.g. Galdamez v. Biordi Construction Corp., 13 Misc.3d 1224A, 2006 N.Y.Misc.LEXIS 2952, 2006 N.Y.Slip.Op. 51969U (Sup.Ct.N.Y.Co. 2006), aff’d 855 N.Y.S.2d 104, 50 A.D.3d 357 (1st Dept. 2008). 36 POINT III THE APPELLATE DIVISION MISINTERPRETED THIS COURT’S HOLDING IN BRUKHMAN V. GIULIANI The Appellate Division’s determination to dismiss Plaintiff-Appellants’ claims rested almost entirely on its interpretation of this Court’s holding in Brukhman v. Giuliani, 94 N.Y.2d 387 (2000), determining that it was “constrained by the decision of the Court of Appeals in Brukhman v. Giuliani (94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)) to find that the repair of City vessels is not a ‘public work’ within the meaning of the statute.” (R 3764). Plaintiffs- Appellants respectfully submit that the Appellate Division misapplied this Court’s holding in Brukhman. Part A: Brukhman did not create a new definition of the term “public work” under New York law It is undisputed that Caddell entered into contracts with various agencies of the City of New York to perform repairs financed by the City of New York upon various vessels owned by the City of New York. It is undisputed that many of these contracts contained provisions requiring Caddell to pay prevailing rates of wages and supplemental benefits to workers performing work on “public works” projects. It is undisputed that the work performed under these contracts was undertaken upon publicly owned vessels, using public funds, through a contractor 37 - Caddell - which directly employed Plaintiffs-Appellants. As such, the Appellate Division’s reliance on Brukhman is misplaced. The sole issue in Brukhman was “whether the prevailing wage provision of the New York State Constitution (art I, § 17) applies to public assistance beneficiaries who are statutorily required to participate in a Work Experience Program . . . as a condition of continued receipt of monetary grants.” Brukhman, 94 N.Y.2d at 390. In the twelve years since Brukhman was issued, no court before the Appellate Division here had cited to it for a definition of the term “public work” under Labor Law § 220. Rather, courts have repeatedly cited to it when determining whether individuals were “employees” entitled to protections under various statutes. See United States v. City of New York, 359 F.3d 83 (2d Cir. 2004) (discussing whether individuals qualified as “employees” under Title VII of the Civil Rights Act, 42 U.S.C. § 2000d et seq.); Elwell v. Weiss, 2006 U.S. Dist. LEXIS 96934 (W.D.N.Y. 2006) (discussing whether an individual qualified as an employee under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.); Toles v. Schillaci, 2006 U.S. Dist. LEXIS 96178 (W.D.N.Y. 2006) (discussing whether an individual qualified as an employee under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.); Stone v. McGowan, 308 F.Supp.2d 79 (N.D.N.Y. 2004) (citing to the Brukhman Court’s holding “that WEP participants are not employees”); Matter of Carver v State of New York, 926 N.Y.S.2d 559, 87 A.D.3d 25 (2d Dept. 2011) 38 (distinguishing the Brukhman Court’s analysis of who constitutes an “employee”), modifying Carver v. State of New York, 877 N.Y.S.2d 669 (Sup.Ct.Kings.Co. April 17, 2009); Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. v. McGowan, 728 N.Y.S.2d 109, 285 A.D.2d 36 (3d Dept. 2001) (citing Brukhman in holding certain individuals not to be employees); McGhee v. City of New York, 2002 N.Y. Misc. LEXIS 1065 (Sup.Ct.N.Y.Co. 2002) (discussing whether an individual constituted an employee for purposes of the New York State Human Rights Law, Executive Law § 296, and New York City Administrative Code § 8- 107(1)(a)). The only case which had cited Brukhman without focusing on the status of individuals as “employees” is Pansini Stone Setting, Inc. v. Crow & Sutton Assocs., 799 N.Y.S.2d 110, 112, 20 A.D.3d 481, 483 (2d Dept. 2005). That case cited to Brukhman for this proposition: “The alleged failure of a non-union employer to pay its employees less than prevailing union wages and benefits is not necessarily violative of public policy, especially where, as here, it does not appear that the work was performed as part of a public project.” The Pansini Court, affirming an arbitration award between two private companies, made no further discussion of the term “public work,” or whether the work at issue was a public project. Rather, it cited to Brukhman for the unremarkable holding that prevailing wages are not required to be paid to workers on non-public works projects. 39 Here, however, the Appellate Division determined that Brukhman constitutes “the seminal opinion of the Court of Appeals on the issue” of whether a project constitutes “public work.” (R 3768). Contrary to the Appellate Division’s holding, Plaintiffs respectfully submit that this Court’s decision in Brukhman was not an attempt by this Court to define “public work.” In deciding that the State Constitution did not bar the City of New York from calculating the hours worked by welfare recipients based on the minimum wage rate rather than the prevailing wage rate, this Court held: This Court is persuaded that plaintiffs are not ‘in the employ of’ anyone, within the intendment of New York Constitution, article I, § 17. Further, the City agencies and not-for-profit organizations to which plaintiffs were assigned are not ‘contractors or subcontractors’ within the meaning of the constitutional provision. Lastly, plaintiffs were not engaged in “public work” within the envisioned scope of that constitutional term of art. Brukhman, supra, 94 N.Y.2d at 393. The first two prongs of the Brukhman Court’s holding clearly do not apply here - Plaintiffs-Appellants were undisputedly employees of Caddell, and Caddell was undisputedly a contractor with various public agencies. Further, the work performed by Plaintiffs-Appellants here is in no way comparable to the work performed by the Plaintiffs in Brukhman. The Supreme Court in Brukhman defined the work performed by the Plaintiffs there as follows: “A WEP participant who performs typing, filing, photocopying and other office functions is equivalent 40 to a file clerk, typist, office assistant or clerical worker. A WEP participant who mops floors, empties wastebaskets, dusts, vacuums, maintains grounds or cleans streets or lots is equivalent to a housekeeper, custodial or maintenance worker, caretaker or a sanitation worker. A WEP participant who assists the elderly or assists with food preparation is equivalent to a health aide.” Brukhman v. Giuliani, 174 N.Y.S.2d 914, 918 (N.Y. Sup. Ct. 1997). Unlike the clerical, health aide, or caretaking work performed by the Plaintiffs in Brukhman, the repair work performed by Plaintiffs-Appellants here was of the type which would - if it were performed on a public building rather than a public vessel - unquestionably require the payment of prevailing wages. See Affidavit of Class Representative Manuel De La Cruz (R 71-73), (performed work as a structural iron worker); Affidavit of Class Member Gary Trivelli (R 79-81), (performed work as an electrician). Nevertheless, the Appellate Division cited to a section of Brukhman which: “referenced phrases used in the debate to limit the definition of ‘public work’ to ‘constructing a public building,’ and ‘erecting an office building’ and ‘highway construction.’ 94 N.Y.2d at 394-395, 705 N.Y.S.2d at 562. The Court noted that the discussion ‘specifically and intentionally related to construction projects rather than general services.’ 94 N.Y. 2d at 394, 705 N.Y.S.2d at 562.” (emphasis in Appellate Division decision) (R 3770). 41 While these references in Brukhman certainly create a distinction between “public work” and the type of clerical, home health aide, and custodial work at issue there, the Appellate Division did not state how the Brukhman Court’s references to “construction” are relevant where, as here, workers are using construction-trade skills to perform municipal repair work. Indeed, in recognizing that the Brukhman plaintiffs were not employees of contractors or subcontractors, and thus could not pursue their claims, this Court noted that - as some of the work at issue there constituted “skilled electrical and painting work,” Brukhman, 94 N.Y.2d at 391, - the Court “need not parse these facial claims to determine whether some might be deemed to squeeze in the ‘public work’ column.” Id. at 396. In short, Plaintiffs-Appellants respectfully submit that this Court in Brukhman was not attempting to provide a sweeping definition of the term “public work.” No court to have ever cited Brukhman, before the Appellate Division here, had ever construed Brukhman to do so. To the extent that Brukhman does provide guidance on what constitutes a “public work,” it is fully consistent with the conclusion that workers who use construction-trade skills to repair publicly owned vessels using public funds - work which would unquestionably require payment of prevailing wages and supplemental benefits were it performed on a public building rather than a public vessel - are engaged in “public work.” 42 Part B: The Plaintiffs-Appellants were engaged in “construction” The Appellate Division specifically looked to the Brukhman Court’s citation to the floor debate record of 1938 New York State Constitutional Convention, which adopted Article 1, § 17. The Appellate Division believed that Plaintiff- Appellants’ claims were defeated by “the fixed nature of ‘public work’ projects [being] emphasized in the Court’s reference to the debate record of the 1938 Constitutional Convention.” (R 3770). However, an analysis of the cited sections of the Floor debate shows that, while the interests sought to be protected by the Plaintiffs in Brukhman were not within those intended by the drafters of Article 1, § 17, the dangers reflected in the floor debate in no way diminish Plaintiffs- Appellants’ contention here that publicly financed repair and renovation of publicly owned vessels constitutes “public work.” This Court, in Brukhman, cited to language from the 1938 Constitutional Convention wherein the Convention described their purpose of Article 1, § 17: the expectations of “public work” reflected in the debate record are specifically and intentionally related to construction projects, rather than general services: “constructing a public building in the State of New York” (id., at 2221 [emphasis added]); “supposing you are building a building” (id., at 2223 [emphasis added]); “erecting an office building in the City of New York” (id., at 2225 [emphasis added]). Significantly, the Record states: “I respectfully suggest that you will still have a fair adequate provision if you limit it to ... the prevailing wage in connection with the direct construction of your public works or your public buildings. That is going to get all your construction work, all your building construction; it is going to get all 43 your highway construction; but you are not going to ... go to the extreme ... [which] is not practical” (id., at 2222 [emphasis added]). Bruckhman, 94 N.Y.2d at 394-395 (emphasis in original). Contrary to the Appellate Division’s holding, nothing in this language in any way indicates that the work performed by Plaintiffs-Appellants was not “public work.” The specific issue which this floor debate was intended to address was the potential for a previous proposed version of Article 1, § 17 to extend prevailing wage protections to employees of producers or suppliers who were uninvolved with the construction project at issue: Under this section if you were constructing a public building in the State of New York, and you wanted Washington red cedar to be incorporated in that building, or Georgia pine or Italian marble, or Vermont granite, or Indiana limestone, or Pittsburg glass, or Pittsburg steel, you could not buy any of those unless those products, all of which are produced or manufactured outside of New York, were manufactured or produced under an eight-hour day and a five-day week. 3 Rev. Rec., 1938 N.Y. Constitutional Convention at 2221. The entire floor debate makes clear that the Constitutional Convention sought to make a distinction between the actual construction, renovation, or repair of public works; and the purchase of pre-manufactured construction materials and goods which were used in the construction of the public works: Why, all you have to do is picture one of your insane asylums. It is not just the physical structure; in connection with it, every possible item, from threads and pins and needles, salt-cellars and pepper shakers, chairs, beds, bedding, all materials, used in connection with that public work, or that public building, would be covered by this 44 amendment as I see it… Let me give you an illustration. You may say it is an extreme example. A lot of you are familiar with the Senate Chamber over there and you know the walls are lined with leather. Why, supposing you are building a building and you are going to line the walls with leather. Do you mean to tell me that the boy back on the farm, that takes the cows to pasture, whose hides are going to be used to make that leather, is going to work eight hours a day, five days a week and get the prevailing rate of wage in the community? 3 Rev. Rec., 1938 N.Y. Constitutional Convention at 2222-2223 Thus, it is clear from the floor debate that the drafters of Article 1, § 17 sought to protect the rights of workers directly engaged upon the construction, renovation, or repair of public works, while excluding from prevailing wage protections workers whose tasks of manufacturing, growing, or processing the material purchased for use in the construction process bore only a remote relation to the public works project. The plaintiffs in Brukhman, even had they been able to establish that they were employees of a contractor, as file clerks, typists, office assistants, clerical workers, housekeepers, custodial or maintenance workers, caretakers, sanitation workers, or health aides are not directly involved in the construction, renovation, or repair of a public work, any more than the supplier or manufacturer of a pepper shaker sold to a public asylum would be. Here, however, Plaintiffs-Appellants performed carpentry, electrical work, structural iron work, sandblasting, painting, pipefitting, and welding directly on public vessels. They were performing the exact type of construction-trade work contemplated by Labor Law § 220, and Article 1, § 17 of the Constitution. This 45 Court has repeatedly held that workers involved in the construction, renovation, and repair of public works are entitled to be paid prevailing rates of wages and supplemental benefits under Labor Law § 220, and that Labor Law § 220 is to be liberally construed. See generally Lantry v. State of New York, 6 N.Y.3d 49, 54 (2005) (“Labor Law § 220 implements the constitutional mandate that contractors engaged in public projects pay their workers wages and supplements which ‘shall be not less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work… is performed’”); Bucci v. Vill. of Port Chester, 22 N.Y.2d 195, 201 (1968) (“This Court has more than once noted that section 220 must be construed with the liberality needed to carry out its beneficent purposes”); Gaston v. Taylor, 274 N.Y. 359, 364 (1937) (“Doubtless the Legislature in enacting and in amending section 220 of the Labor Law, had in mind, primarily and insistently, the need of providing protection against possible injustice on the part of the contractors in their dealing with their laborers, workmen and mechanics”); Austin v. City of New York, 258 N.Y. 113, 117 (1932) (Labor Law § 220 “is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics”). While this Court in Brukhman - when discussing file clerks, typists, office assistants, clerical workers, housekeepers, custodial or maintenance workers, 46 caretakers, sanitation workers, and health aides - did state that “we have defined ‘public work’ narrowly,” Brukhman, 94 N.Y.2d at 396, the cases Brukhman cited to for that proposition bear no resemblance to the work performed here, as all address the inapplicability of prevailing wage requirements to service, rather than construction, work. See Varsity Transit, Inc. v. Saporita, 418 N.Y.S.2d 667, 668, 71 A.D.2d 643, 644 (2d Dept. 1979), aff’d 48 N.Y.2d 767 (1979) (“the school bus drivers and matrons who are the subject of the instant contract proposals do not fall within the class of employees covered by the law”); Pinkwater v. Joseph, 88 N.Y.S.2d 895, 275 A.D. 757 (1st Dept. 1949), aff’d 300 N.Y. 729 (1949) (held that laundry workers in a city institution did not have to be paid the prevailing rate of wages). Of particular note here, the Brukhman Court then proceeded to compare these cases with Twin States CCS Corp. v. Roberts, 72 N.Y. 2d 897, 899 (1988). In Twin States, this Court held: we agree that the project constituted a ‘public work.’ In determining whether a particular project constitutes a ‘public work,’ the inquiry focuses on the purpose or function of the project. Here, the project, the installation of a telecommunications system which required a degree of construction-like labor, was installed in a public building for use by public employees. Therefore, the installation of the telecommunications system was a ‘public work’ within the meaning of Labor Law § 220. (internal citations and punctuation omitted) 47 Here - just as in Twin States, and unlike Brukhman, Varsity Transit, or Pinkwater - the work performed by Plaintiffs-Appellants required “construction- like labor.” Indeed, the work performed by Plaintiffs-Appellants consisted entirely of “construction-like labor.” With respect to the “purpose or function of the project,” it is difficult to conceive of anything more clearly designed for the public benefit than the Staten Island Ferry - which is provided by the City of New York to the public at no cost. As such, none of the concerns at issue in Brukhman are present here, and the Appellate Division’s statement that it was “constrained by [Brukhman] to find that the repair of City vessels is not a ‘public work’ within the meaning of” Labor Law § 220 (R 3784) was error. 48 CONCLUSION Wherefore, for the reasons set forth above, it is respectfully requested that the Order of the Supreme Court, Bronx County, dated May 19, 2010 (Guzman, J.), be reversed, and this Court grant such relief as the Court deems just and proper. Dated: New York, New York October 26, 2012 Virginia & Ambinder, LLP Attorneys for Plaintiffs-Appellants Trinity Centre 111 Broadway, Suite 1403 New York, New York 10006 (212) 943-9080 By:____________________________ James Emmet Murphy, Esq. Lloyd R. Ambinder, Esq.