Smith v Nova Cas. Co.

[*1] Smith v Nova Cas. Co. 2009 NY Slip Op 50986(U) [23 Misc 3d 1128(A)] Decided on April 16, 2009 Supreme Court, Rockland County Weiner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2009
Supreme Court, Rockland County

M. Patricia Smith, Commissioner of Labor of the State of New York, Plaintiff,

against

Nova Casualty Company, Defendant.



1078/08



Andrew M. Cuomo

Attorney General of the

State of New York

Attorneys for Plaintiff

Neil B. Connelly, Esq.

Attorney for Defendants

Alfred Weiner, J.

Upon the foregoing papers, it is ORDERED that these applications are disposed of as follows:

The underlying action was commenced pursuant to CPLR §3215 to recover underpaid prevailing wages and supplements after Plaintiff determined that Seabury Enterprises ("Seabury") LLC failed to pay the prevailing wage on two public works projects. The alleged underpayments on the Stony Point Golf Course Project were for the period ending August 7, 2002 and the alleged underpayment on the Rombout Fire District Project was for the period ending January 21, 2004. Defendant, Nova Casualty Company ("Nova") provided bonds to guarantee payment by Seabury, the employer.

On September 27, 2007 Plaintiff and Seabury entered into a stipulation of settlement pursuant to which Seabury agreed to pay certain monies in satisfaction of Plaintiff's claim. When Seabury failed to honor the agreement, Plaintiff made demand for payment from Defendant, Seabury's guarantor. An Order and Determination was filed by the Commissioner of Labor on October 3, 2007 and this action was initiated on October 2, 2008.

Defendant opposes Plaintiff's demand for payment stating that Plaintiff's claim against the payment bonds is untimely and, therefore, barred by the applicable statute of limitations. Defendant contends that Plaintiff's claim had to be made within one year of the date of the last alleged underpayment of wages and supplements and that a 2002 amendment to Labor Law §220-g that expanded the time within which Plaintiff can commence an action does not apply since Defendant signed the bonds prior to the enactment of the amendment and that the amendment is not retroactive.

In support of her claim, Plaintiff contends that the 2002 amendment to the statute applies to this [*2]matter since Seabury's underpayment of its workers continued for years after the amendment came into effect. It is Plaintiff's contention that she had one year from October 3, 2007 to file this action since that is the date the Order and Determination of the Commissioner of Labor was filed.

It is undisputed that the bonds in question were issued prior to the November 1, 2002 amendment of section 220-g of the Labor Law. It is also undisputed that the Commissioner's determination that Seabury failed to pay the prevailing wages on the public works projects was made after the statute's amendment.

Generally, the time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed. CPLR §203(a)

The 2002 amendment to Labor Law §220-g which, in addition to permitting the affected employees to bring an action on the bond within one year of the last alleged underpayment, provided the alternative of commencing such action "...within one year of the date of the filing of an order by the commissioner or other fiscal officer determining a wage or supplement underpayment." Rochez v Travelers Cas. & Sur. Co. of Am., 8 AD3d 121, 1st Dept., 2004

Labor Law §220-g, provides, in relevant part , that the action may be brought "...within one year of the date of the last alleged underpayment, or within one year of the date of the filing of an order by the commissioner or other fiscal officer determining a wage or supplement underpayment."

The Court disagrees with Defendant's contention that permitting this action to proceed gives a retroactive application to the amendment. The Court finds that the aggrieved employees had existing and viable claims at the time the amendment to the statute took effect (November 1, 2002) since Seabury's underpayment of its workers continued beyond that date. The employees had the option of commencing an action on the bond within one year of the last alleged underpayment or, as the amended statute now provides, within one year of the date of the filing of an order by the commissioner determining a wage or supplement underpayment. The amendment merely provided the aggrieved workers with an alternative and expanded period within which to sue.

The Court further finds that the Commissioner's right of action for the underpayment of wages accrued on October 3, 2007 when the Order and Determination was filed and her right of action lasted for one year. This action was initiated on October 2, 2008. Accordingly, the Court also finds that this action was timely filed and that Plaintiff is entitled to the relief sought. Plaintiff's motion for judgment is, therefore, granted and Defendant's cross-motion is denied.

Settle judgment. [*3]

Dated: New City, New York

April 16, 2009

Enter:

HON. ALFRED J. WEINER JSC

To:

Andrew M. Cuomo

Attorney General of the

State of New York

Attorneys for Plaintiff

Neil B. Connelly, Esq.

Attorney for Defendants