Matter of Hanley v Thompson

Matter of Hanley v Thompson 2007 NY Slip Op 05314 [41 AD3d 207] Decided on June 14, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2007
Andrias, J.P., Saxe, Friedman, Nardelli, Malone, JJ.
1325
Index 1887/05

[*1]In re James F. Hanley, as Commissioner of the City of New York Office of Labor Relations, Petitioner-Appellant,

v

William C. Thompson, Jr., as the Comptroller of the City of New York, etc., Respondent-Respondent, Mickey McFarland, as President of Local 1157 of District Council 37, AFSCME, AFL-CIO, et al., Intervenors-Respondents.




Michael A. Cardozo, Corporation Counsel, New York (Scott
Shorr of counsel), for appellant.
Judd Burstein, New York, for William C. Thompson, Jr.,
respondent.
Schwartz, Lichten & Bright, P.C., New York (Daniel R. Bright
of counsel), for Mickey McFarland, respondent.
Eddie M. Demmings, New York (Leonard D. Polletta of
counsel), for Lillian Roberts, respondent.

Determination of respondent New York City Comptroller, dated March 2, 2006, establishing the prevailing wage rate for the title of Supervisor Highway Repairer (SHR), unanimously confirmed, the petition denied and this Labor Law § 220 proceeding dismissed, without costs.

Substantial evidence supports the Comptroller's finding, after a thorough investigation that included a comparison of the civil service job specification and collective bargaining agreements, field surveys of private and public sectors in other cities, and a survey of private sector interviewees (see Matter of Nash v New York State Dept. of Labor, 34 AD3d 905 [2006], lv denied 8 NY3d 803 [2007]; Matter of City of New York Off. of Labor Relations v Comptroller of City of N.Y., 253 AD2d 596 [1998]), that SHRs and foremen of highway repairs in Locals 1010 (Road and Street Construction Laborers) and 1018 (Sheet Asphalt Workers) perform comparable duties.

We find no merit to petitioner's contention that SHRs cannot obtain the prevailing wage for performing manual labor that is not delineated in their job specification. SHRs' job specification is found in Part 38 of the competitive class of New York City's civil service [*2]schedule, "The Skilled Craftsman and Operative Service." This is a prevailing wage title that cannot be challenged in the instant proceeding (see Matter of Don v Joseph, 1 NY2d 708 [1956]; Matter of Golden v Joseph, 307 NY 62 [1954]). Furthermore, the SHR "General Statement of Duties and Responsibilities" includes "performs related work." Testimony established that as part of their supervisory duties, SHRs were hands-on workers who performed "related" manual labor in instructing new employees and pitching in where necessary to insure that the work was done properly and kept on schedule; they thus faced the same risks as their crew (see Austin v City of New York, 258 NY 113 [1932]). SHRs are thus entitled to the same
prevailing wage as the foremen who perform comparable duties in the private sector.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2007

CLERK