                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     521317
________________________________

In the Matter of SUIT-KOTE
   CORPORATION,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

PETER M. RIVERA, as New York
   State Commissioner of Labor,
                    Respondent.
________________________________


Calendar Date:   January 11, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


      Bond Schoeneck & King, PLLC, Syracuse (Brian J. Butler of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Frederick
A. Brodie of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Ferreira, J.),
entered March 19, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review determinations of respondent establishing
prevailing wage rates.

      In July 2014, respondent published, pursuant to Labor Law
§ 220, the schedules of prevailing wage rates to be paid on
public work projects in certain localities from June 2014 to June
2015. Petitioner, a highway construction contractor, commenced
this proceeding challenging the wage rates pertaining to heavy
construction and highway construction for three classifications
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of workers: operating engineers, laborers and teamsters.
Petitioner alleged, among other things, that respondent's
determinations regarding the three classifications were arbitrary
and affected by error of law in that respondent relied upon
single collective bargaining agreements (hereinafter CBAs) from
each of the three classifications and failed to inquire whether
those CBAs covered 30% of the workers in each classification as
required by Labor Law § 220. Further, asserting that it had set
forth adequate proof that respondent had failed to meet the 30%
threshold, petitioner sought to annul the wage rate schedules
and, alternatively, requested leave to conduct disclosure in the
event its submissions were insufficient. After respondent
answered and oral argument was conducted, Supreme Court denied
petitioner's request for disclosure and dismissed the petition in
its entirety. Petitioner appeals.

      "Labor Law § 220 implements the constitutional mandate that
contractors engaged in public projects pay their workers wages
and supplements which 'shall be not less than the prevailing rate
for a day's work in the same trade or occupation in the locality
within the state where such public work . . . is performed'"
(Matter of Lantry v State of New York, 6 NY3d 49, 54 [2005],
quoting Labor Law § 220 [3] [a]; see NY Const, art I, § 17).
Determining the prevailing wage rate is a two-step process
involving, first, classifying the work to a specific trade or
occupation and then, as relevant to this appeal, ascertaining the
prevailing wage rate for each trade or occupation within the
locality (see Matter of Lantry v State of New York, 6 NY3d at 54;
Matter of New York Tel. Co. v New York State Dept. of Labor, 272
AD2d 741, 743-744 [2000], lv denied 95 NY2d 763 [2000]). Under
prior law, the extensive surveying of wage rates was unduly time-
consuming and the results were "invariably equivalent to
collectively bargained rates" (Matter of Liquid Asphalt Distribs.
Assn. v Roberts, 116 AD2d 295, 297 [1986]). Accordingly, in
1983, "the Legislature dispensed with respondent's duty to survey
and instead provided for the adoption of collectively bargained
wage rates" (id. at 298; see Matter of Lantry v State of New
York, 12 AD3d 864, 866 [2004], affd 6 NY3d 49 [2005]).
Respondent may thus establish rates based upon CBAs where 30% of
the workers in a trade in the locality are subject to CBAs (see
Labor Law § 220 [5]; Matter of New York Tel. Co. v New York State
                              -3-                521317

Dept. of Labor, 272 AD2d at 744; Matter of Liquid Asphalt
Distribs. Assn. v Roberts, 116 AD2d at 297-298), and Labor Law §
220 (6) places the burden upon an employer who contests a
prevailing wage determination "to show that, in fact, less than
30% of the workers in a given locality are subject to the wage
rate adopted" (Matter of Liquid Asphalt Distribs. Assn. v
Roberts, 116 AD2d at 298; see Matter of Lantry v State of New
York, 12 AD3d at 866; Matter of New York Tel. Co. v New York
State Dept. of Labor, 272 AD2d at 744).

      Petitioner alleges that respondent accepted without inquiry
the data provided in the CBAs and presumed that the agreements
satisfied the 30% threshold. Petitioner argues that this
procedure violated Labor Law § 220 (5) and that such statutory
subdivision imposes an antecedent obligation that respondent must
establish before the burden is placed on petitioner by Labor Law
§ 220 (6). We are unpersuaded. The statutory scheme was amended
to reduce respondent's administrative and fiscal burden to
conduct extensive surveys, which had not produced results
markedly different than the CBAs, and to authorize a
determination based on the CBAs. The CBAs, of course, must be
between bona fide labor organizations and private sector
employers who employ at least 30% of the relevant workers (see
Labor Law § 220 [5]). An employer can certainly challenge that
determination upon any number of grounds, including that the CBAs
were not made with a bona fide labor organization, that incorrect
data was used from the CBAs or that the 30% threshold was not
met. However, reading together subdivisions 5 and 6 of Labor Law
§ 220, as well as considering the pertinent precedent, does not
support shifting the initial burden to respondent. We have held
that "the 1983 amendments place the burden on employers who
contest prevailing wage rates" (Matter of Liquid Asphalt
Distribs. Assn. v Roberts, 116 AD2d at 298; see Matter of Lantry
v State of New York, 12 AD3d at 866), and we discern no reason to
depart from that holding. With regard to petitioner's
constitutional argument, we previously have rejected
constitutional challenges to the relevant provisions of the
statute (see Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d
279, 285 [1992], appeal dismissed 79 NY2d 1039 [1992], lv denied
80 NY2d 757 [1992], cert denied 507 US 972 [1993]; see also
Matter of Lantry v State of New York, 12 AD3d at 866 n; Matter of
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General Elec. Co. v New York State Dept. of Labor, 154 AD2d 117,
121 [1990], affd 76 NY2d 946 [1990]).

      Next, we consider petitioner's challenge to the method used
by respondent in his determination, which will be upheld unless
it is arbitrary and capricious or irrational (see Matter of
Lantry v State of New York, 6 NY3d at 52; Matter of New York Tel.
Co. v New State Dept. of Labor, 272 AD2d at 744). Respondent
relied upon three CBAs: the first between locals 186, 322, 633
and 785 of the Laborers' International Union of North America and
Associated General Contractors of New York State, LLC, Central
New York region, pertaining to laborers; the second between local
158 of the International Union of Operating Engineers and
Associated General Contractors of New York, LLC, Albany,
Rochester and Central New York regions pertaining to operating
engineers; and the third between the International Brotherhood of
Teamsters, Local 317, and Economy Paving Company pertaining to
teamsters. As discussed at length by Supreme Court, the record
contains ample support for respondent's determination of the
prevailing wage rates based upon these documents. For example,
the laborers' and engineers' CBAs were signed by Associated
General Contractors on behalf of its members, which included some
199 contractors as to laborers and 166 contractors as to
operating engineers. The employer who signed the teamsters' CBA
had a substantial number of employees and, moreover, there was
proof that the union would negotiate a master CBA that was used
by additional employers, but not all such CBAs were provided to
respondent because there was no need for repetitive CBAs with the
same essential provisions. While there were some gaps in the
information available to respondent, the infirmities did not
fatally infect respondent's analysis to the point of being
irrational, arbitrary or capricious (see Matter of New York Tel.
Co. v New York State Dept. of Labor, 272 AD2d at 744).

      Petitioner did not establish under the standard set by
Labor Law § 220 (6) that respondent used the CBAs covering less
than 30% of the relevant workers. To remedy this failure of
proof, petitioner argues that its alternative request for
disclosure pursuant to CPLR 408 should have been granted.
"Consistent with the summary nature of a special proceeding, CPLR
408 generally disallows pretrial disclosure without leave of
                              -5-                  521317

court" (Vincent C. Alexander, Practice Commentaries, McKinney's
Cons Laws of NY, Book 7B, CPLR 408, at 405; see Matter of
Beatrice R.H. [Dean E.H.—Penny F.H.], 131 AD3d 1059, 1059-1060
[2015], lv dismissed 26 NY3d 1077 [2015]). Supreme Court has
broad discretion when considering a request for disclosure under
CPLR 408 (see Matter of Held v State of N.Y. Workers'
Compensation Bd., 103 AD3d 1063, 1064 [2013]; Matter of Morris
Bldrs., LP v Empire Zone Designation Bd., 95 AD3d 1381, 1385
[2012], affd sub nom. James Sq. Assoc. LP v Mullen, 21 NY3d 233
[2013]). Among the factors weighed are whether the party seeking
disclosure has established that the requested information is
material and necessary (see Matter of Town of Wallkill v New York
State Bd. of Real Prop. Servs., 274 AD2d 856, 859 [2000], lv
denied 95 NY2d 770 [2000]), whether the request is carefully
tailored to obtain the necessary information (see Matter of
Georgetown Unsold Shares, LLC v Ledet, 130 AD3d 99, 106 [2015])
and whether undue delay will result from the request (see Matter
of Bramble v New York City Dept. of Educ., 125 AD3d 856, 857
[2015]). Here, petitioner sought, among other things, extensive
disclosure from numerous nonparties, some of which were not even
identified. In light of the exceedingly broad and undefined
nature of the information sought, together with the almost
certain unduly protracted delay that would result, we cannot say
that Supreme Court abused its discretion in denying CPLR 408
disclosure under the circumstances. The remaining issues have
been considered and are unavailing.

     McCarthy, J.P., Lynch and Devine, JJ., concur.


     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
