Matter of Malcolm v Stringer

Matter of Malcolm v Stringer 2015 NY Slip Op 03463 Decided on April 28, 2015 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 April 28, 2015
Gonzalez, P.J., Mazzarelli, Renwick, Gische, JJ.
14947N

[*1] In re Tyrone Malcolm, Petitioner,

v

Scott Stringer, etc., et al., Respondents.

Virginia & Ambinder, LLP, New York (Lloyd R. Ambinder of counsel), for petitioner.

Zachary W. Carter, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for Scott Stringer, respondent.

Cozen O'Connor, New York (Stuart Shorenstein of counsel), for Allied Barton Security Services LLC and Allied Security, LLC, respondents.

In this proceeding brought pursuant to CPLR article 78, the petition challenging a release issued by the Office of the Comptroller of the City of New York in connection with its final determination, dated July 10, 2014, that, among other things, respondent Allied-Barton Security Services LLC underpaid 143 of its employees prevailing wages in the total amount of $1,238,976.39 for the time period October 2010 through March 2013, unanimously granted to the extent of declaring that the release does not waive the right to pursue breach of contract claims for underpaid prevailing wages under contract No. 06H9503 prior to October 2010, and otherwise denied, without costs.

The ambiguous release has the meaning given to it by its drafter, the Comptroller (see Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597, 604 [2005] [agency's determination and interpretation is entitled to deference]), and discharges any claims for the underpayment of prevailing wages concerning contract no. 06H9503 with respect to the October 2010 through March 2013 time period. Accordingly, petitioner is not barred from pursuing breach of contract claims against Allied for the period prior to October 2010.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 28, 2015

CLERK