Opinion
INDEX NO. 103326/2010 MOTION SEQ. NO. 5
2013-09-24
REGULO ENRIQUEZ AND BILFREDO TRIUNFEL LOPEZ, individually and on behalf of all other persons similarly situated who were employed by BHUMI CONSTRUCTION INCORPORATION, MILLENIUM CENTURY CONTRACTING CORP., K.S. CONTRACTING CORP., AND ANJAC ENTERPRISES INC., Plaintiffs, v. BHUMI CONSTRUCTION INCORPORATION, MILLENIUM CENTURY CONTRACTING CORP., K.S. CONTRACTING CORP., ANJAC ENTERPRISES INC., INDIVIDUALLY AGAINST BIMAL PATEL AND RADHAKRISHNA REDDI, Defendants.
PRESENT: Hon.
Justice
MOTION DATE ___
MOTION CAL. NO. ___
The following papers, numbered 1 to ___ were read on this motion for/to
| PAPERS NUMBERED | |
| Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... | 1,2,3 |
| Answer — Affidavits — Exhibits | |
| Replying Affidavits |
Cross-Motion: Yes X No
The instant action was brought by Plaintiffs, who work as bricklayers, laborers, pointers, stone setters, and in construction-related trades, to recover overtime and prevailing wages and benefits from Defendants, for work that Plaintiff's performed on publicly financed projects ("Public Works Projects") that had been contracted with such government entities as the City of New York ("NYC"), the New York City Housing Authority ("NYCHA"), the New York City Department of Parks and Recreation ("NYCDPR"), and the State of New York ("NYS").
Defendant ANJAC Enterprises Inc. ("ANJAC") now brings this motion for summary judgment pursuant to CPLR §3212 on its First and Second Cross-Claims against defendant Bhumi Construction Incorporation ("Bhumi") in the amount of $100,000.00.
ANJAC's first cross-claim alleges that "to the extent that Bhumi has failed to pay Plaintiff prevailing wages, Bhumi is liable to ANJAC for breach of contract." The second cross-claim asserts that "to the extent ANJAC is found liable to Plaintiffs, ANJAC is entitled to indemnification from Bhumi." There is no opposition submitted to ANJAC's motion.
In support of its motion, ANJAC provides: the Affidavit of George Georgakis, President of ANJAC; the Agreement between AJNAC and Bhumi, dated January 24, 2009; the Bhumi's Certification under Labor Law 220 dated April 3, 2009; the Payroll & OSHA Certification dated May 11, 2009; a letter dated April 13, 2013 from ANJAC to Bhumi; the checks showing ANJAC's payments made to Virginia and Ambinder LLP; the summons and complaint; Bhumi's answer to the first amended complaint; and ANJAC's answer to the first amended complaint.
On January 24, 2009, ANJAC, as Contractor, and Bhumi, as subcontractor, entered into a subcontract Purchase Order ("the Agreement") for the performance of construction work at the Project known as Manhattan Community College, Exterior Renovation ("the Project").
The Agreement provides:
This is a Public works project. Labor Law §220 is in effect. Payment of Prevailing wages to the tradesman and payroll reporting is required.
In addition to the submission of certified payrolls, Bhumi also executed (1) a certification attesting to the fact that Bhumi would "agree to pay the applicable prevailing wages and to pay or provide the supplements specified herein", and (2) a Payroll & OSHA Certification attesting to the fact that "all laborers, workers and mechanics were paid wages and supplements recorded as earned on the attached payroll records."
As alleged in Georgakis's affidavit, Bhumi failed to pay prevailing wages as required under Labor Law. As a result and in settlement of this action, ANJAC was required to pay to plaintiff's the sum of $100,000. This payment was made by ANJAC based on the fact that ANJAC was statutorily liable for the non-payment of wages of its subcontractors. Bhumi has failed to reimburse ANJAC for this payment nor did Bhumi object to ANJAC's making this payment to settle the action.
The sum of $16,292.40 is currently being held in escrow by plaintiff's counsel until one of the settling plaintiff's is located.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970], Edison Stone Corp. v. 42nd Street Development Corp., 145 A.D.2d 249, 251-252 [1st Dept. 1989]).
ANJAC's first cross-claim alleges that "to the extent that Bhumi has failed to pay Plaintiff prevailing wages, Bhumi is liable to ANJAC for breach of contract." The second cross-claim asserts that "to the extent ANJAC is found liable to Plaintiffs, ANJAC is entitled to indemnification from Bhumi."
Labor Law §223 provides that "whenever the 'evidence indicates a noncompliance or evasion on the part of a sub-contractor, the contractor shall be responsible for such noncompliance or evasion.'" (Canarsie Plumbing & Heating Corp. v. Goldinm, 151 A.D.2d 331, 333 [1st Dept 1989]). "The construction of this statute as permitting the imposition of civil penalties on a contractor, though not itself guilty of willfulness, for the willful violation of the mandates of the Labor Law by its subcontractor is certainly not inconsistent with the underlying statutory purpose of holding contractors responsible for the actions of their subcontractors." (Canarsie Plumbing, 151 A.D.2d at 333).
"[C]ommon-law indemnification is available to a party that has been held vicariously liable from the party who was at fault in causing plaintiff's injuries." Structure Tone, Inc. v. Universal Servs. Group., Ltd., 87 A.D. 3d 909, 911 [1st Dept 2011].
ANJAC has established prima facie entitlement to summary judgment on its first cross claim against Bhumi based on breach of contract and second cross claim for indemnification. ANJAC has established that it has tendered proof of payment in connection with the settlement of plaintiff's claims, that such payment was made based on the failure of Bhumi to pay prevailing wages on a public works project in accordance with the parties' Agreement, and that Bhumi has failed to reimburse ANJAC for this payment. Inasmuch as Bhumi has not opposed this motion, it has failed to raise a triable issue of fact.
Wherefore, it is hereby,
ORDERED that defendant ANJAC Enterprises Inc.'s motion for summary judgment on its first and second cross claims against defendant Bhumi Construction Incorporation, in the amount of $100,000, is granted without opposition; and it is further
ORDERED that the Clerk enter judgment in favor of defendant ANJAC Enterprises, Inc., and against defendant Bhumi Construction Incorporation in the amount of $100,000 together with interest as prayed for allowable by law (at the rate of 9% per annum) until the date of entry of judgment, as calculated by the Clerk, and thereafter at the statutory rate, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.
This constitutes the decision and order of the court. All other relief requested is denied.
____________________________
HON. EILEEN A. RAKOWER
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