`FILED: NEW YORK COUNTY CLERK 02/02/2024 06:14 PMFILED: NEW YORK COUNTY CLERK 03/27/2024 02:38 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 16
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`NEW YORK CITY TRANSIT AUTHORITY
`and FLEETWASH, INC.
`
`Index No.: ______
`
`Plaintiffs,
`
`-against-
`
`OFFICE OF THE NEW YORK CITY
`COMPTROLLER and
`BRAD LANDER, in his official capacity as
`the New York City Comptroller
`
`Defendants.
`
`SUMMONS
`
`TO THE ABOVE-NAMED DEFENDANTS:
`
`YOU ARE HEREBY SUMMONED TO ANSWER THE COMPLAINT in this action
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`and to serve a copy of your answer on plaintiffs’ attorneys within twenty (20) days after the
`
`service of this summons, exclusive of the day of service, or within thirty (30) days after service
`
`is complete if this summons is not personally delivered to you within the State of New York; and
`
`in the case of your failure to appear or answer, judgment will be taken against you for the relief
`
`demanded herein.
`
`Dated: February 2, 2024
`New York, New York
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`(intentionally blank)
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`PROSKAUER ROSE LLP
`Attorneys for Plaintiff New York City
`Transit Authority
`Neil H. Abramson
`Rosanne Facchini
`Theresa Madonna
`Eleven Times Square
`New York, New York 10036
`Phone: (212) 969-3000
`Fax: (212) 969-2900
`Email: nabramson@proskauer.com
`rfacchini@proskauer.com
`tmadonna@proskauer.com
`
`
`
`GIBBONS P.C.
`Attorneys for Plaintiff Fleetwash, Inc.
`Christine A. Amalfe
`John C. Romeo
`1 Pennsylvania Plaza
`Floor 45, Suite 4515
`New York, New York 10119
`Phone: (212) 613-2000
`Fax: 212-290-2018
`Email: camalfe@gibbonslaw.com
`jromeo@gibbonslaw.com
`
`TO: OFFICE OF THE NEW YORK CITY COMPTROLLER and
`BRAD LANDER, in his official capacity as the New York City Comptroller
`1 Centre Street #530
`New York, NY 1000
`
`2
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`NEW YORK CITY TRANSIT
`AUTHORITY, and FLEETWASH, INC.
`
`Index No.: ______
`
`Plaintiffs,
`
`-against-
`
`OFFICE OF THE NEW YORK CITY
`COMPTROLLER and
`BRAD LANDER, in his official capacity as
`the New York City Comptroller
`
`Defendants.
`
`COMPLAINT
`
`Plaintiff the New York City Transit Authority (“NYCTA”), by its attorneys Proskauer Rose
`
`LLP, and Plaintiff Fleetwash, Inc. (“Fleetwash”), by its attorneys Gibbons P.C., hereby allege for
`
`the Complaint against Defendants, the Office of the New York City Comptroller and Brad Lander,
`
`in his official capacity as the New York City Comptroller (the “Comptroller”), as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`NYCTA and Fleetwash bring this declaratory judgment action pursuant § 3001 of
`
`the New York Civil Practice Law and Rules (“CPLR”) against the Comptroller for a declaration
`
`resolvable through pure statutory interpretation that Article 8 and/or Article 9 of the New York
`
`Labor Law (“Labor Law”) does not require the payment of prevailing wage and benefit rates to
`
`employees of contractors of NYCTA engaged in the work of cleaning and sanitizing subway train
`
`cars because such work is not “construction-like labor” to come within the ambit of Article 8, nor
`
`is it “building service work” as defined in Article 9 of the Labor Law.
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`2.
`
`In response to the COVID-19 pandemic and the need for increased cleaning and
`
`sanitation of subway train cars, NYCTA contracted with contractors, including, but not limited to,
`
`Fleetwash and Progressive Pipeline Management (“PPM”), to provide services for the cleaning
`
`and sanitizing of subway train cars.
`
`3.
`
`The Comptroller has publicly expressed the opinion that Labor Law Article 9
`
`applies to the “cleaning of trains” and has initiated proceedings against Fleetwash and PPM based
`
`on the allegation that these contractors have failed to pay prevailing wage and benefit rates to
`
`workers employed on contracts with NYCTA for services cleaning and sanitizing subway train
`
`cars. The proceeding against Fleetwash has resulted in a determination by an investigator that
`
`Fleetwash violated the Labor Law Article 8 and/or Article 9. The proceeding against PPM has not
`
`yet resulted in a determination by an investigator.
`
`4.
`
`Fleetwash and PPM have both invoked the dispute resolution mechanisms in their
`
`respective contracts with NYCTA and may attempt to recover from NYCTA for any amount paid
`
`or required to be paid related to their respective proceedings with the Comptroller.
`
`5.
`
`In light of the foregoing, there is a present and live dispute between NYCTA and
`
`Fleetwash, and the Comptroller implicating NYCTA’s and Fleetwash’s rights and resolvable
`
`through statutory interpretation regarding whether Article 8 and/or Article 9 of the Labor Law
`
`applies to contractors of NYCTA engaged in the work of cleaning and sanitizing subway train
`
`cars.
`
`THE PARTIES
`
`6.
`
`Plaintiff NYCTA is a public benefit corporation established pursuant to the New
`
`York Public Authorities Law, Section 1200, et. seq. NYCTA operates the subway and certain bus
`
`and Paratransit services in New York City. The statutory purposes of NYCTA have been declared
`
`2
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`as “in all respects for the benefit of the people of the State of New York” and NYCTA “shall be
`
`regarded as performing a governmental function in carrying out its corporate purposes and in
`
`exercising the powers granted” to it. Pub. Auth. Law, § 1202. NYCTA’s principal place of business
`
`is 2 Broadway, New York, NY 10004.
`
`7.
`
`Plaintiff Fleetwash is private corporation that offers, as relevant here, mobile fleet
`
`washing and disinfecting services in the New York Metropolitan Area. Fleetwash’s principal place
`
`of business is 26 Law Drive, Fairfield, New Jersey, 07004.
`
`8.
`
`Defendant, the Office of the Comptroller of the City of New York, is responsible,
`
`as relevant here, for the setting and enforcement of prevailing wage and benefit rates for those
`
`employed on New York City public works projects pursuant to Labor Law Articles 8 and 9. The
`
`Comptroller’s principal place of business is located at One Centre Street, New York, NY 10007.
`
`9.
`
`Defendant, Brad Lander, is the City of New York Comptroller, and is named solely
`
`in his official capacity.
`
`JURISDICTION AND VENUE
`
`10.
`
`11.
`
`Jurisdiction is proper pursuant to CPLR Sections 3001 and 302.
`
`Venue is proper in New York County, pursuant to CPLR Section 503(a) since, inter
`
`alia, the principal office of Defendants and Plaintiff NYCTA is New York County.
`
`FACTUAL ALLEGATIONS
`
`The Labor Law Prevailing Wage and Benefit Rates Provisions
`
`12.
`
`The New York Constitution, Article I, § 17, provides, as relevant here, that:
`
`“[n]o laborer, worker or mechanic, in the employ of a contractor or sub-contractor
`engaged in the performance of any public work, ... shall ... be paid less than the rate of
`wages prevailing in the same trade or occupation in the locality within the state where
`such public work is to be situated, erected or used.”
`
`3
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`13.
`
`This constitutional mandate is effectuated by Article 8 of the Labor Law, which
`
`requires the payment of prevailing wage and benefit rates to “laborers, work[ers] or mechanics”
`
`on “public works projects” for the performance of “construction-like labor.” Labor Law §
`
`220(3)(a); De La Cruz v. Caddell Dry Dock & Repair Co., 21 N.Y.3d 530, 538 (2013) (“First, a
`
`public agency must be a party to a contract involving the employment of laborers, workers, or
`
`mechanics. Second, the contract must concern a project that primarily involves construction-like
`
`labor and is paid for by public funds. Third, the primary objective or function of the work product
`
`must be the use or other benefit of the general public.”)
`
`14.
`
`In 1971, Article 9 of the Labor Law was enacted and extended the prevailing wage
`
`and benefit rates requirements to certain types of service contracts. Labor Law § 231.
`
`15.
`
`Article 9 of the Labor Law provides that “every contractor shall pay a service
`
`employee under a contract for building service work a wage of not less than the prevailing wage
`
`in the locality for the craft, trade or occupation of the service employee.” Labor Law § 231 (1)
`
`(emphasis added).
`
`16.
`
`“Building service work” is defined as “work performed by a building service
`
`employee.” Labor Law § 230 (2).
`
`17.
`
`“Building service employee” is defined as “any person performing work in
`
`connection with the care or maintenance of an existing building, or in connection with the
`
`transportation and delivery of fossil fuel to such building, for a contractor under a contract with a
`
`public agency which is in excess of one thousand five hundred dollars and the principal purpose
`
`of which is to furnish services through the use of building services employees.” Labor Law § 230
`
`(1) (emphasis added).
`
`4
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`NYCTA Contracts for Cleaning and Sanitizing Subway Train Car Services are not Subject
`Labor Law Articles 8 and/or Article 9
`
`18.
`
`In response to the COVID-19 pandemic, on or about May 8, 2020, NYCTA
`
`contracted with Fleetwash, to clean and disinfect subway train cars. Attached hereto as Exhibit 1
`
`is a true and complete copy of Contract No. 26208, Purchase Order No. 6030386439, SSE No.
`
`312073 (the “Fleetwash Contract”).
`
`19.
`
`The Fleetwash Contract contains a Scope of Work which provides:
`
`In response to COVID-19 “Coronavirus”, New York City Transit Authority (“NYCT”) has
`to retain a Contractor (“Contractor”) to perform the following two-step treatment process
`on the interiors of NYCT’s subway cars at certain Terminal stations: [1] Perform the
`Cleaning of Subway Car Interiors[;] [2] Wipe interior touch surfaces with Disinfectant
`Solution.
`
`Exhibit 1 at NYCTA000015, NYCTA000099 (emphasis added).
`
`20.
`
`The Scope of Work in the Fleetwash Contract further provides that Fleetwash is
`
`required to “perform basic cleaning of subway cars and to wipe interior touch surfaces of the cars
`
`with a disinfectant while the cars are temporarily staged awaiting their next trip.” Exhibit 1 at
`
`NYCTA000015, NYCTA000099.
`
`21.
`
`The Scope of Work in the Fleetwash Contract does not include the cleaning and/or
`
`disinfecting of subway terminal buildings or any other buildings. See Exhibit 1.
`
`22.
`
`On or about May 19, 2020, NYCTA contracted with PPM to clean and disinfect
`
`subway train cars. Attached hereto as Exhibit 2 is a true and complete copy of Contract No.
`
`26272, Purchase Order No. 6030386973 (the “PPM Contract”). The Scope of Work in the PPM
`
`Contract mirrors that in the Fleetwash Contract. Exhibit 2 at NYCTA000249.
`
`23.
`
`The services performed under the Scope of Work of the Fleetwash and PPM
`
`Contracts do not constitute “construction-like labor” subject to the requirement of Article 8 of the
`
`5
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`Labor law. Labor Law § 220(3)(a); De La Cruz v. Caddell Dry Dock & Repair Co.,21 N.Y.3d 530,
`
`538 (2013).
`
`24.
`
`The services performed under the Scope of Work of the Fleetwash and PPM
`
`Contracts also do not constitute “building service work” as defined in Article 9 of the Labor Law,
`
`rendering Article 9 inapplicable to these Contracts. Labor Law § 230 (2).
`
`The Comptroller’s Improper Extension of Jurisdiction Over Enforcement of Article 8 and/or
`Article 9 of the Labor Law to Contracts for the Cleaning and Sanitizing of Subway Train
`Cars
`
`25.
`
`On May 18, 2020, the (former) Comptroller sent a letter to Patrick Foye, the former
`
`Chairman and Chief Executive officer of the Metropolitan Transportation Authority and ex officio
`
`Chair and Chief Executive Officer of NYCTA, which stated the following:
`
`It has come to my attention that [NYCTA] has contracted with private cleaning companies
`to perform the important task of cleaning and disinfecting subway stations and trains, but
`these companies may not be paying their employees prevailing wages and benefits.
`
`As you know, my office enforces Articles Eight and Nine of New York State Labor Law
`for New York City public works and building service contracts. These laws require
`payment of prevailing wages and supplements to workers employed on these contracts.
`
`My staff has had the opportunity to review one of the NYCT’s cleaning contracts, and it
`does not appear to require the payment of prevailing wages and benefits, or attach my
`office’s Building Service Employee Prevailing Wage Schedule. My office communicated
`with NYCTA about this last week, but has heard nothing back.
`
`Based upon a review of the scope of work in the cleaning contract, I have determined that
`building service prevailing wage rates under Labor Law Article 9 apply. The cleaners
`employed on these contracts are performing work that is of great public benefit and
`importance.
`
`Attached hereto as Exhibit 3 is a true and complete copy of the Comptroller’s May 18, 2020 letter.
`
`26.
`
`The Comptroller’s May 18, 2020, letter did not include any reasoning as to why
`
`Article 9 of the Labor Law would apply to contracts for the cleaning and sanitizing of subway train
`
`cars. See Exhibit 3. The letter also did not state that it was the Comptroller’s opinion that Article
`
`6
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`8 of the Labor Law applied to contracts for the cleaning and sanitizing of subway train cars. See
`
`Exhibit 3.
`
`27.
`
`On March 31, 2021, the Comptroller sent a second letter to Mr. Foye restating his
`
`opinion that Article 9 of Labor Law applies to contracts for the cleaning and sanitizing of subway
`
`train cars. Specifically, the letter stated:
`
`I have determined that Labor Law Article Nine applies to the cleaning of trains as well as
`subway stations. Subway trains are occupied by the public in the same way as buildings
`and cleaning the interiors of subway trains involves the same type of work as cleaning
`building interiors. Indeed, the workers that clean the trains do so while the trains are sitting
`in subway stations.
`
`Attached here to as Exhibit 4 is a true and complete copy of the Comptroller’s March 31, 2021
`
`letter.
`
`28.
`
`On May 26, 2021, Thomas Quigly, former General Counsel of the MTA responded
`
`in writing to the Comptroller indicating disagreement with the Comptroller’s opinion.
`
`Specifically, the letter stated:
`
`The prevailing wage requirement of Article 9 applies to a “building service employee”
`which is defined as “any person performing work in connection with the maintenance of
`an existing building, or in connection with the transportation of office furniture or
`equipment to or from such building, or in connection with the transportation and delivery
`of fossil fuel to such building, for a contractor under a contract with a public agency which
`is in excess of one thousand five hundred dollars and the principal purpose of which is to
`furnish services through the use of building service employees.”
`
`Thus, the plain meaning of the prevailing wage requirement of Article 9 is that it applies
`to services pertaining to a building, and there is nothing to suggest that it also applies to
`similar types of services but which do not pertain to a building. For that reason, the MTA’s
`subway car cleaning contracts have not included a prevailing wage recruitment
`notwithstanding the fact that the cars are being cleaned when in station locations.
`
` (emphasis in original) (internal citations omitted).
`
`Attached hereto as Exhibit 5 is a true and complete copy of Mr. Quigly’s May 26, 2021 letter.
`
`7
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 16
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`29.
`
`On or About April 14, 2021, the Comptroller began to investigate Fleetwash for
`
`failing to pay prevailing wages in violation of the Labor Law. Attached hereto as Exhibit 6 is a
`
`true and complete copy of the Comptroller’s April 14, 2021 notice.
`
`30.
`
`On November 28, 2023, Rudolpho Donawa, Associate Investigator for the
`
`Comptroller, sent a notice to Fleetwash’s counsel, stating that the investigation concluded
`
`Fleetwash had violated “Labor Law Article 8 (or Article 9 []).” Specifically, the letter stated:
`
`As you are aware, Fleetwash, Inc. is currently under investigation by the Office of the
`Comptroller for failing to pay prevailing wages and supplements in violation of New York
`Labor Law Article 8 (or Article 9, or New York State Real Property Tax Law § 421-a).
`
`After conducting an investigation and audit of prevailing wage underpayment, this office
`has determined that Fleetwash, Inc. overpaid 13 and underpaid 139 employees who worked
`at the 8th Avenue/14th street, “L” subway line, New York, NY from April 20, 2020 through
`April 25, 2021 pursuant to contract number 6030386439. Enclosed please [] find [a] copy
`of the audit regarding these employees.
`
`Attached hereto as Exhibit 7 is a true and complete copy of Associate Investigator Donawa’s
`November 28, 2023 findings.
`
`31.
`
`If Fleetwash does not settle the matter, it may proceed to a hearing with the Office
`
`of Administrative Trials and Hearings (“OATH”). 44 R.C.N.Y, § 2-06. The OATH hearing would
`
`be held in front of an administrative judge who may dispose of a case by making a decision or
`
`report and recommendation on the record. 44 R.C.N.Y, § 1-51.1.
`
`32.
`
`However, in cases brought under Article 8 and Article 9 of the Labor Law, the
`
`Comptroller may adopt, reject or modify the administrative law judge’s report and
`
`recommendation. 44 R.C.N.Y, § 2-06(e)(2). The ultimate determination lies with the Comptroller.
`
`Id.
`
`33.
`
`Fleetwash has invoked the dispute resolution procedures of the Fleetwash Contract
`
`and has asserted that it may seek to recover from NYCTA for any amounts demanded by the
`
`Comptroller for any alleged failure to pay prevailing wages and benefits to employees who
`
`8
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`performed services pursuant to the Fleetwash Contract or any amounts paid or required to be paid
`
`related to proceedings with the Comptroller.
`
`34.
`
`On or about May 9, 2023, the Comptroller began to investigate PPM for failing to
`
`pay prevailing wages in violation of the Labor Law. Attached here to as Exhibit 8 is a true and
`
`complete copy of the Comptroller’s May 9, 2023 notice. Upon information and belief, no findings
`
`have been issued in the PPM Contract investigation at the time of the filing of this Complaint.
`
`35.
`
`PPM has invoked the dispute resolution procedures of the PPM Contract and has
`
`asserted that it may seek contribution from NYCTA for amounts demanded by the Comptroller
`
`for any alleged failure to pay prevailing wages and benefits to employees who performed services
`
`pursuant to the PPM Contract.
`
`Declaratory Judgement is Appropriate to Resolve This Statutory Interpretation Dispute
`
`36.
`
`Declaratory relief is appropriate because there is presently a judiciable dispute of
`
`pure statutory interpretation between NYCTA and the Comptroller regarding whether contractors
`
`of NYCTA employing workers engaged in cleaning and sanitizing subway train cars are subject
`
`to prevailing wage and benefit provisions of the Labor Law Article 8 and/or Article 9. See Feher
`
`Rubish Removal v. New York State Dept. of Labor, 28 A.D.3d 1 (4th Dept 2005) (Finding a hybrid
`
`CPLR Article 78 proceeding and declaratory judgement action concerning the preliminary
`
`jurisdictional issues of the applicability of Articles 8 and/or 9 of the Labor Law was properly a
`
`declaratory judgment action resolvable by the court through statutory interpretation).
`
`37.
`
`The instant judiciable dispute of pure statutory construction does not raise a factual
`
`issue and, consequently, there is no requirement that NYCTA exhaust administrative remedies
`
`and/or proceed with an Article 78 proceeding. Id.
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`38.
`
`Alternatively, and expressly reserving NYCTA’s position that the Comptroller does
`
`not have the authority to resolve the instant dispute of pure statutory construction that is within
`
`the exclusive purview of the courts, exhaustion of administrative remedies by NYCTA would be
`
`futile in light of the Comptroller’s prior publicly stated opinions and extension of its jurisdiction
`
`over the Fleetwash and PPM Contracts. See, e.g., Pyramid Co. of Onondaga v. Hudacs, 193
`
`A.D.2d 924, 925–26 (1993) (Discussing “exceptions to the general rule requiring exhaustion of
`
`remedies” where “the agency head had either explicitly made a determination that negatively
`
`affected the petitioners” and/or “or practicality has dictated that such a determination was the only
`
`possible outcome of administrative appeals”).
`
`COUNT I
`
`DECLARATORY JUDGMENT
`
`39.
`
`NYCTA repeats, re-alleges, and incorporates by reference paragraphs 1 through 38
`
`above as if set forth fully herein.
`
`40.
`
`This case involves a judiciable controversy between Plaintiffs and Defendants as to
`
`whether NYCTA’s contracts for cleaning and disinfecting subway train cars are subject to the
`
`prevailing wage and benefits requirements of the Labor Law Article 8 and/or Article 9.
`
`41.
`
`Article 8 of the Labor Law does not apply to the cleaning and disinfecting of
`
`subway train cars because this project is not “construction-like labor.” Labor Law § 220(3)(a);
`
`De La Cruz v. Caddell Dry Dock & Repair Co.,21 N.Y.3d 530, 538 (2013).
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`42.
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`Article 9 of the Labor Law does not apply to the cleaning and disinfecting of
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`subway train cars because this project is not “building service work” as defined in Labor Law
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`Article 9. Labor Law §§ 230 (2), 231(1).
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`10
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`12 of 14
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`

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`FILED: NEW YORK COUNTY CLERK 02/02/2024 06:14 PMFILED: NEW YORK COUNTY CLERK 03/27/2024 02:38 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 16
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`
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`INDEX NO. 650579/2024INDEX NO. 650579/2024
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`
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`RECEIVED NYSCEF: 02/02/2024RECEIVED NYSCEF: 03/27/2024
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs the New York City Transit Authority and Fleetwash, Inc.
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`request judgment against the Comptroller as follows:
`
`A. Declaring that NYCTA’s contracts for the cleaning and disinfecting of subway train cars
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`are not subject to the prevailing wage and benefit rates requirements of Article 8 of New
`
`York Labor Law.
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`B. Declaring that NYCTA’s contracts for the cleaning and disinfecting of subway train cars
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`are not subject to the prevailing wage and benefit rates requirements of Article 9 of New
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`York Labor Law.
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`C. Awarding such other further relief as this Court may deem just and proper.
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`(intentionally blank)
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`11
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`13 of 14
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`FILED: NEW YORK COUNTY CLERK 02/02/2024 06:14 PMFILED: NEW YORK COUNTY CLERK 03/27/2024 02:38 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 16
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`
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`INDEX NO. 650579/2024INDEX NO. 650579/2024
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`
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`RECEIVED NYSCEF: 02/02/2024RECEIVED NYSCEF: 03/27/2024
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`Dated: February 2, 2024
`New York, New York
`
`PROSKAUER ROSE LLP
`Attorneys for Plaintiff New York City
`Transit Authority
`Neil H. Abramson
`Rosanne Facchini
`Theresa Madonna
`Eleven Times Square
`New York, New York 10036
`Phone: (212) 969-3000
`Fax: (212) 969-2900
`Email: nabramson@proskauer.com
`rfacchini@proskauer.com
`tmadonna@proskauer.com
`
`GIBBONS P.C.
`Attorneys for Plaintiff Fleetwash, Inc.
`Christine A. Amalfe
`John C. Romeo
`1 Pennsylvania Plaza
`Floor 45, Suite 4515
`New York, New York 10119
`Phone: (212) 613-2000
`Fax: 212-290-2018
`Email: camalfe@gibbonslaw.com
`jromeo@gibbonslaw.com
`
`TO: OFFICE OF THE NEW YORK CITY COMPTROLLER and
`BRAD LANDER, in his official capacity as the New York City Comptroller
`1 Centre Street #530
`New York, NY 1000
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`12
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`14 of 14
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