Matter of Brown v Liu

Matter of Matter of Brown v Liu 2012 NY Slip Op 03567 Decided on May 8, 2012 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 May 8, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Renwick, Freedman, JJ.
7585 115251/10

[*1]In re Kuba Brown, as President of Local 94-94A-94B, etc., Petitioner-Appellant,

v

John C. Liu, etc., Respondent-Respondent. Service Employee International Union Local 32BJ, Amicus Curiae.




Pitta & Giblin LLP, New York (Jane Lauer Barker of counsel),
for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Julian L.
Kalkstein of counsel), for respondent.
Office of the General Counsel, Service Employees International
Union, New York (Andrew L. Strom of counsel), for amicus
curiae.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered March 30, 2011, granting respondents' cross motion to dismiss the petition brought pursuant to CPLR article 78, which sought, inter alia, to direct respondent Comptroller to conduct an investigation of the wage complaints filed by certain members of Local 94, unanimously affirmed, without costs.

The court correctly determined that the union members, the custodian-helpers, were not entitled to the prevailing wage and benefits protection under Labor Law article 9. Under the "indirect system" of custodial care, the New York City Department of Education (DOE) employs custodian-engineers in accordance with civil service regulations, who in turn may employ custodian-helpers (see generally Matter of Conlin v Aiello, 64 AD2d 921 [1978], affd 49 NY2d 713 [1980]). The terms of the custodian-engineers' employment are set forth in the collective bargaining agreement between their union and the DOE. Thus, since custodian-engineers are [*2]employees of the DOE, they are not "contractors," and custodian-helpers are not their "building service employees," as those terms are defined in Labor Law § 230 et seq.

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

ENTERED: MAY 8, 2012

CLERK