         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1291
CA 12-00478
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


IN THE MATTER OF HOPEWELL VOLUNTEER FIRE
DEPARTMENT, INC. AND CHRISANNTHA CONSTRUCTION
CORP., PETITIONERS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

COLLEEN C. GARDNER, IN HER OFFICIAL CAPACITY AS
NEW YORK STATE COMMISSIONER OF LABOR,
RESPONDENT-APPELLANT.


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ZAINAB A. CHAUDHRY OF
COUNSEL), FOR RESPONDENT-APPELLANT.

SCICCHITANO & PINSKY, PLLC, SYRACUSE (BRADLEY M. PINSKY OF COUNSEL),
FOR PETITIONERS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Ontario County (Frederick G. Reed, A.J.), entered May 26, 2011 in a
proceeding pursuant to CPLR article 78. The judgment granted the
motion of petitioners for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the motion is denied,
respondent is granted summary judgment and the petition is dismissed.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking, inter alia, determinations that the prevailing
wage provisions of Labor Law § 220 were not applicable to the
construction of an addition to a firehouse by petitioner Hopewell
Volunteer Fire Department, Inc. and that respondent was prohibited
from implementing or enforcing section 220 against petitioners. We
conclude that Supreme Court erred in granting petitioners’ motion for
summary judgment on the petition and, indeed, we conclude that the
court should have granted summary judgment in favor of respondent
pursuant to CPLR 3212 (b) and dismissed the petition. “Those who wish
to challenge agency determinations under [CPLR] article 78 may not do
so until they have exhausted their administrative remedies” (Walton v
New York State Dept. of Correctional Servs., 8 NY3d 186, 195).
“[Q]uestions regarding the applicability of Labor Law § 220 ‘cannot be
answered without the development of a factual record and an
examination of all the circumstances of the project, tasks which the
Legislature has assigned, in the first instance, to respondent’ ”
(Matter of Christa Constr., LLC v Smith, 63 AD3d 1331, 1331; see
§ 220 [8]). Here, “no final agency determination has been reached; in
                                 -2-                          1291
                                                         CA 12-00478

fact, no such determination can be made until a fact-finding hearing
has been held. Absent exceptional circumstances, it is only after
such a hearing is held, and a final determination made, that an
aggrieved party may bring a CPLR article 78 proceeding to challenge
the legality of the determination” (Matter of Pyramid Co. of Onondaga
v Hudacs, 193 AD2d 924, 925). We reject petitioners’ contention that
the exhaustion of administrative remedies is not necessary because the
Department of Labor (DOL) was acting “wholly beyond its grant of
power” (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57).
Here, as in Christa, the court “erroneously focused on its own
conclusion that the project at issue was not subject to the prevailing
wage law, as opposed to DOL’s broad jurisdiction to determine
prevailing wages on public works projects in the first instance” (id.
at 1332; see generally Pyramid Co. of Onondaga, 193 AD2d at 925-926).
In light of our determination, we do not consider respondent’s
remaining contention.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
