         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
313
CA 10-01673
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND GORSKI, JJ.


MARLINO GRESS, MAURICE HOWIE,
TIMOTHY M. JOHNSON AND ABRAHAM MCKINNEY, ON
BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY
SITUATED PERSONS, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

BYRON BROWN, AS MAYOR, CITY OF BUFFALO, AND
BUFFALO FISCAL STABILITY AUTHORITY,
DEFENDANTS-APPELLANTS.


DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (TIMOTHY A. BALL
OF COUNSEL), FOR DEFENDANTS-APPELLANTS BYRON BROWN, AS MAYOR, AND CITY
OF BUFFALO.

HARRIS BEACH PLLC, PITTSFORD (A. VINCENT BUZARD OF COUNSEL), FOR
DEFENDANT-APPELLANT BUFFALO FISCAL STABILITY AUTHORITY.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN M. LICHTENTHAL OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeals from a judgment and order of the Supreme Court, Erie
County (Timothy J. Drury, J.), entered October 28, 2009. The judgment
and order, inter alia, granted the motion of plaintiffs for partial
summary judgment and declared that defendant Buffalo Fiscal Stability
Authority does not have the authority to freeze the wages of
plaintiffs, denied and dismissed defendants’ affirmative defenses, and
denied the cross motions of defendants for summary judgment.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this class action on behalf of
former and current City of Buffalo Public Works Department seasonal,
at-will sanitation employees seeking, inter alia, damages resulting
from the alleged failure of defendants Byron Brown, as Mayor, and the
City of Buffalo (collectively, City defendants) to pay plaintiffs in
compliance with the Buffalo Living Wage Ordinance ([Living Wage
Ordinance] City of Buffalo Code § 96-19). The City defendants and
defendant Buffalo Fiscal Stability Authority (BFSA) each appeal from a
judgment and order that, inter alia, granted plaintiffs’ motion for
partial summary judgment declaring that the BFSA does not have the
authority to freeze plaintiffs’ wages. We reject defendants’
contention that Supreme Court erred in denying the respective cross
                                 -2-                           313
                                                         CA 10-01673

motions of the City defendants and the BFSA for summary judgment
dismissing the amended complaint on the ground that the action is
actually a CPLR article 78 proceeding to which the four-month statute
of limitations is applicable. “The appropriate [s]tatute of
[l]imitations is determined by the substance of the action and the
relief sought” (Bennett Rd. Sewer Co. v Town Bd. of Town of Camillus,
243 AD2d 61, 66). Plaintiffs originally commenced this action against
only the City defendants, seeking damages for their violation of the
Living Wage Ordinance, and they thereafter amended the complaint to
include a cause of action for a declaration against the BFSA when
defendants raised as an affirmative defense the wage freeze imposed by
the BFSA from April 2004 to June 2007. Thus, the gravamen of the
action is not a challenge to the BFSA’s determination to impose a wage
freeze, either in general or as applied to plaintiffs. Rather,
plaintiffs commenced this action to recover damages based on the City
defendants’ alleged violation of the wage requirements set forth in
the Living Wage Ordinance (cf. Matter of Foley v Masiello, 38 AD3d
1201, 1202), and they amended the complaint to seek a declaration
regarding the rights of the BFSA with respect to plaintiffs’ wages in
response to defendants’ assertion of the wage freeze as an affirmative
defense.

     We reject defendants’ further contention that the court erred in
declaring that the wage freeze imposed by the BFSA was inapplicable to
plaintiffs’ wages. Pursuant to the BFSA Act, the BFSA “shall be
empowered to order that all increases in salary or wages of employees
of the [C]ity . . . [that] will take effect after the date of the
order pursuant to collective bargaining agreements, other analogous
contracts or interest arbitration awards, now in existence or
hereafter entered into, requiring such salary or wage increases as of
any date thereafter are suspended” (Public Authorities Law § 3858 [2]
[c] [i] [emphasis added]). Defendants do not contend that the terms
of plaintiffs’ employment are governed by a collective bargaining
agreement (CBA) or that there is an applicable interest arbitration
award. Further, even assuming, arguendo, that some of the terms of
plaintiffs’ employment as seasonal workers can be determined by
reference to the CBA governing permanently employed sanitation
workers, we conclude that plaintiffs are not entitled to any scheduled
wage increases pursuant to that CBA. Instead, plaintiffs’ scheduled
wage increases “take effect” pursuant to the Living Wage Ordinance,
and thus those wage increases are outside the purview of the BFSA’s
authority (id.; see Patrolmen’s Benevolent Assn. of City of N.Y. v
City of New York, 41 NY2d 205, 208-209). We have reviewed defendants’
remaining contentions and conclude that they are without merit.




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
