In re Carrube v. N.Y.C. Transit Auth

Full title: IN THE MATTER OF MICHAEL CARRUBE, ETC., ET AL., appellants, v. NEW YORK…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 25, 2002

291 A.D.2d 558 (N.Y. App. Div. 2002)

738 N.Y.S.2d 67

Opinion

2001-03429

Argued January 22, 2002.

February 25, 2002.

In a proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondent, New York City Transit Authority, from conducting a "job pick", the petitioners appeal from a judgment of the Supreme Court, Kings County (Hall, J.), dated March 22, 2001, which denied the petition and dismissed the proceeding.

Kennedy, Schwartz Cure, P.C., New York, N.Y. (Stuart Lichten of counsel), for appellants.

Richard Schoolman, Brooklyn, N.Y. (Caroline Laguerre-Brown of counsel), for respondent.

Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, SONDRA MILLER, BARRY A. COZIER, JJ.

DECISION ORDER

ORDERED that the judgment is affirmed, with costs.

Contrary to the petitioners' contention, there is no implied private right of action for alleged violations of Labor Law §§ 162 and 166. When statutes are silent on whether a private right of action exists the court must determine if such a right may be fairly implied ( see, Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 325). A three-prong test is applied to determine whether an implied private right of action exists: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted, (2) whether recognition of a private right of action would promote the legislative purpose, and (3) whether creation of such a right would be consistent with the legislative scheme" ( Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633). With regard to the third prong of the test, if a provision or body of law has a potent official enforcement mechanism, the Legislature contemplated administrative enforcement and there is no private right of action ( see, Uhr v. Greenbush Cent. School Dist., 94 N.Y.2d 32; see also, Negrin v. Norwest Mtg., 263 A.D.2d 39). Here, a review of the applicable statutory provisions reveals a legislative scheme whereby the Commissioner of Labor shall enforce and regulate Labor Law §§ 162 and 166 ( see, Labor Law § 21). Accordingly, the Supreme Court properly dismissed this proceeding pursuant to CPLR article 78.

The petitioners' remaining contention is without merit.

ALTMAN, J.P., SMITH, S. MILLER and COZIER, JJ., concur.