Precedents Cited and Their Influence

• Herman v. Judlau Contracting, Inc., 204 AD3d 496 (1st Dept 2022), lv dismissed 39 NY3d 1055 (2023): The earlier appeal affirmed summary judgment on liability and referral to a Special Referee for damages. That affirmance foreclosed re-litigation of damages theories in this appeal—most notably the claim that workers were awarded “prevailing wages for all time,” including non-prevailing tasks. The Court invoked this prior ruling to apply law-of-the-case principles, citing New Hampshire Ins. Co. v. MF Global Fin. USA Inc., 204 AD3d 141, 151–52 (1st Dept 2022).
• McMillan v. Out-Look Safety LLC, 241 AD3d 1162 (1st Dept 2025) and Idahosa v. MFM Contr. Corp., 239 AD3d 536 (1st Dept 2025): These decisions anchor the First Department’s clear rule that plaintiffs seeking prevailing wages via a common-law contract action do not need to exhaust administrative remedies, and that any failure to exhaust does not undermine class certification. They directly undermine the trial-level decision in Van Osten v. HuiCatao Corp. and show that no “change in the law” justified renewal under CPLR 2221(e).
• Alper Rest., Inc. v. Catamount Dev. Corp., 137 AD3d 1559 (3d Dept 2016): Supports the proposition that contractual liability can attach absent direct privity if the defendant is in a joint venture or partnership with a signatory. The Court used this to explain why awards to Waterworks JV employees were not improper on the merits.
• Matter of Tap Elec. Contr. Serv. v. Hartnett, 76 NY2d 164 (1990): The Court of Appeals held that § 220 applies to State-funded and jointly funded projects and is not preempted by federal law. Here, it undergirds the holding that a contractually required “higher-of” wage schedule governs even where the Davis-Bacon schedule is lower.
• Farage v. Associated Ins. Mgt. Corp., 43 NY3d 152, 158 (2024): Articulates the documentary evidence standard under CPLR 3211(a)(1), permitting dismissal where an unambiguous contract refutes the plaintiff’s allegations. The Court relied on this to dismiss Judlau’s claims against the City.
• 34-06 73, LLC v. Seneca Ins. Co., 39 NY3d 44 (2022) and Barker v. Time Warner Cable, Inc., 83 AD3d 750 (2d Dept 2011): Clarify that a breach-of-contract pleading must identify the specific provisions allegedly breached. The FAC failed this standard.
• Singh v. City of New York, 40 NY3d 138 (2023): The implied covenant cannot create obligations inconsistent with the contract’s express terms. The Court used this to reject attempts to impose on the City implied duties to ensure the contracts’ compliance with prevailing wage law where the contracts assign that duty to the contractor and disclaim reliance on City-provided wage information.
• Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382 (1987): The economic loss rule: a simple breach of contract is not a tort absent an independent legal duty. This disposed of negligence claims.
• Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 (2011) and J.P. Morgan Sec. Inc. v. Ader, 127 AD3d 506 (1st Dept 2015): Fraud demands misstatements or omissions of material fact, not law; negligent misrepresentation requires a special relationship. The arm’s-length, sophisticated-party relationship here defeated both tort theories.
• George Backer Mgt. Corp. v. Acme Quilting Co., 46 NY2d 211 (1978) and 34-06 73, LLC: Reformation requires proof that the executed writing fails to reflect an actual, mutually intended agreement (mutual mistake) or unilateral mistake plus fraud. The FAC alleged neither.
• Service Sign Erectors Co. v. Allied Outdoor Adv., 175 AD2d 761 (1st Dept 1991): Where a contract contains indemnity in one party’s favor, reciprocal common-law indemnity is extinguished. This, plus other grounds, defeated common-law indemnity.
• Chatham Towers, Inc. v. Castle Restoration & Constr., Inc., 151 AD3d 419 (1st Dept 2017) and Zimmerman v. Pokart, 242 AD2d 202 (1st Dept 1997): Contribution/indemnity are inappropriate where the underlying liability sounds in contract rather than tort, and where the alleged third party has no independent, coextensive duty to the plaintiff.
• Hoxie’s Painting Co. v. Cato-Meridian Cent. School Dist., 76 NY2d 207, 213 (1990): The “unmistakable aim” of Labor Law § 220 is to place liability for prevailing-wage violations on the noncomplying contractor. This policy rationale also defeats attempts to shift even partial liability to a public owner via contribution or indemnity theories.
• Corsello v. Verizon N.Y., Inc., 18 NY3d 777, 790–91 (2012) and Cox v. NAP Constr. Co., Inc., 10 NY3d 592, 607 (2008): Unjust enrichment is unavailable where other claims cover the field or where a contract governs the subject matter. Both rationales applied here.
• Apple Records v. Capitol Records, 137 AD2d 50, 54 (1st Dept 1988): Declaratory judgment is unnecessary where an adequate alternative remedy exists (e.g., breach-of-contract damages). The Court applied this to dismiss the declaratory claim seeking to shift liability to the City.

Legal Reasoning

A. The Herman judgment: renewal denied; damages and rate determinations affirmed

The Court first addressed Judlau’s attempt to reopen earlier rulings via a motion to renew under CPLR 2221(e). Renewal requires either new facts not previously known or a change in the law that would likely alter the prior determination. Judlau relied exclusively on Van Osten v. HuiCatao Corp., a trial-level, unreported Queens County decision asserting that plaintiffs must exhaust administrative remedies before pursuing a Labor Law § 220 claim in court. The First Department rejected this as a basis for renewal because:

• It was not a change in law—trial-level decisions are not controlling on the Appellate Division.
• It conflicts with the First Department’s own controlling precedents, McMillan and Idahosa, which hold that exhaustion is not required for § 220-based contract actions and does not impede class certification.
• Even the Van Osten court recognized Herman but discounted it on inapposite grounds.

Turning to damages, the Court held that Judlau’s challenge to the scope of wage awards (asserting that some time was “non-prevailing-wage work”) had already been squarely presented and rejected in the 2022 appeal. Under principles reflected in New Hampshire Ins. Co., re-argument of issues resolved by a prior appeal is foreclosed.

The Court further rejected Judlau’s late-raised objection to awards for workers employed by Waterworks, A Joint Venture, both as waived (not raised in the pre-hearing brief) and, alternatively, on the merits. The merits analysis rested on the joint venture principle that contractual liability can arise without strict privity when a defendant is in a joint venture or partnership with a signatory—applicable here because Judlau was a partner in the Waterworks joint venture.

Finally, the Court endorsed the Special Referee’s application of the higher New York § 220 wage schedule instead of the lower Davis-Bacon schedule for the Chambers Street Project. A clause in the bid documents explicitly required use of the higher of the two schedules. The Court also invoked Tap Electric to confirm that § 220 is applicable to jointly funded projects and is not preempted by federal law—further supporting application of the higher New York schedule where the contract so provides.

B. The Judlau v. City action: documentary dismissal and pleading failures

The Court affirmed dismissal of Judlau’s first amended complaint against the City, DOT, and DDC on two independent bases:

1. CPLR 3211(a)(1) (documentary evidence): The five public works contracts assign prevailing-wage compliance to the contractor, require it to pay enforcement costs, obligate it to investigate trade classifications and wage applicability, and contain broad indemnification of the City for claims “arising out of or related to” the contractor’s and subcontractors’ operations. Crucially, the contracts state that errors in prevailing wage information furnished by the City “will not” shield the contractor from underpayment liability. Under Farage, these unambiguous terms “utterly refute” the factual allegations that the City bore responsibility, warranting dismissal.
2. CPLR 3211(a)(7) (failure to state a claim): Each of the thirteen causes of action failed on settled legal grounds:
   • Breach of contract: The FAC did not identify any specific contractual provision breached by the City, as required by 34-06 73, LLC.
   • Implied covenant: The alleged implied duty for the City to ensure compliance with prevailing wage law contradicts express contract terms putting that duty on the contractor; such inconsistency is barred by Singh.
   • Negligence: Barred by Clark-Fitzpatrick because no independent legal duty apart from the contracts was alleged.
   • Fraud: Defective because the alleged misstatements or omissions were about law, not material facts, contrary to Mandarin Trading.
   • Negligent misrepresentation: Failed due to the absence of a “special relationship”—arm’s-length dealings among sophisticated parties do not suffice (Ader).
   • Reformation: No mutual mistake or unilateral mistake plus fraud; a heavy presumption that the written contracts reflect the parties’ intent controls (George Backer; 34-06).
   • Common-law indemnification and contribution: Multiple bars apply—contractual indemnity runs in the City’s favor (Service Sign Erectors); the Herman action sounds in contract, not tort (Chatham Towers); no independent duty owed by the City to the workers (Zimmerman); and New York public policy places liability for § 220 violations on the noncomplying contractor (Hoxie’s Painting).
   • Unjust enrichment: Duplicative of other claims and barred where contracts govern (Corsello; Cox).
   • Declaratory judgment: Dismissed because an adequate alternative remedy exists (contract damages) and because the predicate claims were dismissed (Apple Records).

The upshot is a robust enforcement of contractual risk-shifting clauses in public works contracts and a reminder that sophisticated parties cannot repackage contract allocation of duties into tort or quasi-contract claims.

Impact and Forward-Looking Implications

• For workers and class counsel: The Court cements the First Department rule that exhaustion of administrative remedies is not a prerequisite to suing for prevailing wages in a contract action. This reduces procedural hurdles and accelerates access to judicial relief, including class mechanisms, without first navigating administrative processes.
• For contractors: The decision underscores that contractors bear the full risk of prevailing-wage compliance. They cannot rely on City-provided schedules or communications to avoid liability, and they cannot shift liability to the public owner through indemnity, contribution, or tort theories. Contractors should:
  • Conduct rigorous, independent trade classification and wage applicability analyses.
  • Price bids to account for the higher of the Davis-Bacon and § 220 schedules when contract documents require the higher-of-the-two.
  • Maintain robust payroll and compliance systems and ensure subcontractor compliance.
  • Review insurance and indemnity coverages in light of non-shiftable § 220 liabilities.
• For public owners (City agencies): The decision validates contractual strategies that place prevailing-wage responsibility on contractors and immunize the City from underpayment claims. Agencies should continue to include explicit allocation clauses stating that City errors in wage information do not relieve contractor liability.
• For joint ventures and upstream participants: The Court’s reliance on joint venture principles warns that entities participating in a JV can face liability even absent direct privity with individual workers. JV agreements and oversight of payroll compliance are critical.
• For civil procedure practitioners:
  • Renewal motions must be anchored in genuine changes in controlling law or new facts; trial-level cases are not enough, especially when contrary to controlling Appellate Division precedent.
  • Law-of-the-case principles will preclude re-litigation of arguments previously raised and rejected on appeal.
  • CPLR 3211(a)(1) remains a powerful tool where contracts clearly allocate risk and duties inconsistent with a plaintiff’s theory of liability.
• Federal/state wage interplay: The higher-of-the-two wage schedule clause is enforceable; § 220 applies even on jointly funded projects and is not federally preempted. Expect continued enforcement of “higher-of” provisions in bid documents.