FILED: NEW YORK COUNTY CLERK 08/31/ :48 PM INDEX NO /2016 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2016

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1 FILED: NEW YORK COUNTY CLERK 08/31/ :48 PM INDEX NO /2016 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ROSOLINO AGRUSA, - against - Plaintiff, Index No.:155839/2016 GLASS ARMOR OF NEW YORK, INC., EMPIRE ENVIRONMENTAL SERVICES, and LIRO ENGINEERS, INC., Defendants. MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS GLASS ARMOR OF NEW YORK, INC. and EMPIRE ENVIRONMENTAL SERVICES, MOTION TO DISMISS PLAINTIFF S COMPLAINT Lloyd Ambinder Jack Newhouse Virginia & Ambinder, LLP 40 Broad Street, 7th Floor New York, New York (212) (212) Attorneys for Plaintiff 1 of 9

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 PRELIMINARY STATEMENT... 1 ARGUMENT... 2 A. Legal Standards on a Motion to Dismiss under CPLR 3211(a)(3)... 2 B. Plaintiffs Are Not Required to Exhaust Administrative Remedies Before Commencing a Common-Law Breach of Contract Civil Action For Unpaid Prevailing Wages... 2 CONCLUSION... 5 i 2 of 9

3 TABLE OF AUTHORITIES Cases Ansah v. A.W.I. Security & Investigation, Inc., 2014 N.Y. Misc. LEXIS 1690 (N.Y. Sup. Ct. Apr. 9, 2014)... 4 Argumedo v. USA Gen. Contractors Corp., 2008 NY Slip Op 30144(U) (N.Y. Sup. Ct. Jan. 14, 2008)... 4 Cardona v. Maramont Corp., 2008 N.Y. Misc. LEXIS 7870 (N.Y. Sup. Ct. Mar. 12, 2008)... 4 Cox v. Nap Construction Co., Inc., 10 N.Y. 3d 592 (N.Y. 2008) Dragone v. Bob Bruno Excavating, Inc., 5 A.D.3d 1238 (App. Div. 3d Dept. 2007)... 4 De La Cruz v. Caddell Dry Dock & Repair Co., Inc.,, 22 A.D.3d 404 (1st Dept. 2005)... 3 Fata v. S.A. Healy Co., 289 N.Y. 401 (1943)... 3 Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977)... 2 Leon v. Martinez, 84 N.Y.2d 83 (1994)... 2 Marshall v. Roselli Moving & Stor. Corp., 2012 N.Y. Misc. LEXIS 307 (N.Y. Sup. Ct. Jan. 23, 2012)... 4 Nawrocki v. Proto Constr. & Dev. Corp., 82 A.D.3d 534 (1st Dept. 2011)... 3 P&T Iron Works v. Talisman Contr. Co., 18 A.D.3d 527 (N.Y. Sup. Ct. 2005)... 4 Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11 (App. Div. 1st Dep t 1998)... 3 Scarpinato v. East Hampton Point Mgt. Corp., 2015 N.Y. Misc. LEXIS 3206 (N.Y. Sup. Ct. Aug. 14, 2015)... 2 ii 3 of 9

4 Strong v. Am. Fence Constr. Co., 245 N.Y. 48 (1927)... 3 Tomlinson v. Wash. Intl. Ins. Co., 2014 NY Slip Op 31106(U) (N.Y. Sup. Ct. Apr )... 2 Wright v Herb Wright Stucco, Inc., 50 N.Y.2d 837 (1908)... 3 Statutes CPLR CPLR 3211(a)(3)... 1, 2 iii 4 of 9

5 INTRODUCTION Plaintiff, by and through his undersigned counsel, submits this Memorandum of Law in opposition to the motion of Defendants Glass Armor of New York, Inc. ( Glass Armor ) and Empire Environmental Services ( EES ) to dismiss Plaintiff s Complaint pursuant to CPLR 3211(a)(3) ( Motion to Dismiss ). PRELIMINARY STATEMENT Plaintiff s claim in this case stems from contracts entered into between government agencies and Liro Engineers, Inc. and Glass Armor and/or EES, which contained provisions requiring the payment of prevailing wages and supplemental benefits to individuals who furnish labor on publicly financed construction projects. 1 See Complaint ( Compl. ) 7-15, at Docket No. 1, and annexed to the affidavit of James Giustiniani as Exhibit A. EES and Glass Armor do not contest that Plaintiff worked on Public Works Projects and was entitled to prevailing wages and supplemental benefits. On the instant motion to dismiss, EES and Glass Armor argue that Plaintiff s complaint must be dismissed because Plaintiff must exhaust administrative remedies by filing a claim with the Department of Labor before commencing an action in court for unpaid prevailing wages and supplemental benefits under Section 220 of the New York Labor Law ( NYLL ). As explained below, Plaintiff is not seeking unpaid prevailing wages pursuant to NYLL 220. Plaintiff s sole cause of action in this case is breach of the Prevailing Wage Contracts. It is well-settled law that Plaintiff is a third party beneficiary to these contracts and may bring suit to recover for this breach 1 These contracts are hereinafter referred to as Public Works Contracts. The publicly financed construction projects Plaintiff worked on are hereinafter referred to as Public Works Projects. iv 5 of 9

6 without first exhausting any administrative remedies. Cox v. Nap Construction Co., Inc., 10 N.Y. 3d 592 (2008). Accordingly, the motion to dismiss filed by EES and Glass Armor must be denied. ARGUMENT A. Legal Standards on a Motion to Dismiss under CPLR 3211(a)(3) Defendants have not demonstrated that Plaintiff lacks the legal capacity to sue therefore warranting dismissal of this action pursuant to CPLR 3211(a)(3). It is well established that, [o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). Leon v. Martinez, 84 N.Y.2d 83, 87 (1994). The court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Id. On such a motion, the Court is limited to examining the pleading to determine whether it states a cause of action. Scarpinato v. East Hampton Point Mgt. Corp., 2015 N.Y. Misc. LEXIS 3206, at *7 (N.Y. Sup. Ct. Aug. 14, 2015) (citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977)); Tomlinson v. Wash. Intl. Ins. Co., 2014 NY Slip Op 31106(U), 5-6 (N.Y. Sup. Ct. Apr ) ( Plaintiffs complaint adequately pleads Plaintiff s status as a third party beneficiary to the prevailing wages provisions of the purported Public Works Contract, in that Plaintiffs complaint pleads that Plaintiff performed certain construction-related services under the contract. ). B. Plaintiffs Are Not Required to Exhaust Administrative Remedies Before Commencing a Common-Law Breach of Contract Civil Action For Unpaid Prevailing Wages In New York, it is black-letter law that workers, such as Plaintiff, need not exhaust any administrative remedies before bringing common law breach of contract claims to recover prevailing wages. See Cox, 10 N.Y.3d at (workers may sue under state law to enforce a 2 6 of 9

7 contractor s promise to pay its workers prevailing wages pursuant to an agreement with NYCHA without first exhausting any administrative remedies). Plaintiff here, like the plaintiffs in Cox, asserts common law breach of contract claims to recover prevailing wages and has not asserted statutory claims under Labor Law 220. Both the First Department and Court of Appeals have repeatedly and expressly recognized a worker s right to maintain a common law breach of contract action for unpaid prevailing wages and benefits. See Cox, 10 N.Y.3d at ; Wright v Herb Wright Stucco, Inc., 50 N.Y.2d 837, 839 (1980) (reversing appellate court s majority opinion and adopting dissenting opinion, holding common-law breach of contract claims for prevailing wages permissible); Fata v. S.A. Healy Co., 289 N.Y. 401, 407 (1943) ( The statutory remedy provided for breach of the statutory obligation would be an inadequate and unsuitable remedy for a violation of this contractual obligation. An intention that the statutory remedy should be used for violation of the contractual obligation cannot be read into the statute by any reasonable construction. It would, indeed, render futile the contractual obligation. ); Strong v. Am. Fence Constr. Co., 245 N.Y. 48, 53 (1927) (plaintiffs, third party beneficiaries to defendant contractor s federally funded contract, could pursue breach of contract claims because [a] beneficiary of the promise... has a right of action for the damages resulting from the breach. ); Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11, 12 (1st Dept. 1998) (a class of workers is permitted to pursue common-law remedies for underpayment of prevailing wages as third party beneficiaries of a contractual promise to pay prevailing wages); De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 22 A.D.3d 404, 405 (1st Dept. 2005); Nawrocki v.proto Constr. & Dev. Corp., 82 A.D.3d 534, 536 (1st Dept. 2011). New York trial courts have never required workers to pursue administrative remedies before asserting common law breach of contract claims to collect prevailing wage cases. See e.g., 3 7 of 9

8 Cardona v. Maramont Corp., 2008 N.Y. Misc. LEXIS 7870, at *5 (N.Y. Sup. Ct. Mar. 12, 2008) ( [N]o court in New York State has ever required workers to exhaust administrative remedies before bringing a third party beneficiary action for breach of contract to recover unpaid prevailing wages and benefits. ); Argumedo v. USA Gen. Contractors Corp., 2008 NY Slip Op 30144(U), 3 (N.Y. Sup. Ct. Jan. 14, 2008) ( [W]orkers on publicly-financed construction projects may bring a common law breach of contract claim against their employers to enforce a provision in the job contracts which requires the payment of prevailing wages. ); Marshall v. Roselli Moving & Stor. Corp., 2012 N.Y. Misc. LEXIS 307, at *11-*12 (N.Y. Sup. Ct. 2012) (breach of contract claims not barred for failure to exhaust administrative remedies under Labor Law 220 because the Labor Law is not the exclusive remedy for recovering prevailing wages); Ansah v. A.W.I. Security & Investigation, Inc., 2014 N.Y. Misc. LEXIS 1690, at *25-*26 (N.Y. Sup. Ct. 2014) (plaintiffs do not have to exhaust their administrative remedies and may proceed on their breach of contract claim for unpaid prevailing wages and benefits). EES and Glass Armor s reliance on P&T Iron Works v. Talisman Contr. Co. is misplaced. 18 A.D.3d 527 (N.Y. Sup. Ct. May 9, 2005). First, in Talisman, the action was brought by a subcontractor rather than by employees as third-party beneficiaries to the contract. Id. at 528. Second, as Talisman states, the private right of action belongs only to those employees who have been underpaid. Id. at 528. Here, the action is brought by an employee as a third-party beneficiary to the contract and, further, the action is brought by an employee who has been underpaid. EES and Glass Armor s reliance on Dragone v. Bob Bruno Excavating, Inc. is equally inapposite. 45 A.D.3d 1238 (3d Dept. 2007). In Bruno, the Court found that plaintiff only pleaded a statutory claim for unpaid prevailing wages under NYLL 220, and failed to adequately plead any common-law breach of contract claim for underpayment of wages and benefits. Id. at of 9

9 Here, Plaintiff s first and sole cause of action is a common-law breach of contract claim for prevailing wages. See Compl Accordingly, Defendants argument that Plaintiff is limited to Administrative remedies fails as a matter of law. CONCLUSION For the foregoing reasons, it is respectfully requested that this Court deny Defendants Motion to Dismiss in its entirety. Dated: New York, New York August 31, 2016 VIRGINIA & AMBINDER, LLP By: /s/ Lloyd Ambinder Jack L. Newhouse 40 Broad Street, Floor 7 New York, N.Y Tel: (212) Fax: (212) lambinder@vandallp.com jnewhouse@vandallp.com Attorneys for Plaintiffs 5 9 of 9