Opinion
November 10, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Assuming arguendo that the motion court properly ignored plaintiffs' affidavits since they contradicted, without explanation, their month-old deposition testimony ( see, Tse Chin Cheung v. G M Hardware Elec., 249 A.D.2d 28; see also, Rubinberg v. Walker, 252 A.D.2d 466), and that plaintiffs therefore failed to raise an issue of fact in response to the surety's prima facie showing that they participated in their employer's payroll kickback scheme, the surety was nonetheless not entitled to dismissal of the workers' claims. As the motion court recognized, under the circumstances, the public policy implemented by article 8 of the Labor Law, seeking to ensure payment of prevailing wages on public construction contracts, is paramount to the surety's interest in avoiding liability for obligations imposed upon it without its consent. In proceeding under Labor Law § 220-g Lab., plaintiffs were not required to proceed first in an administrative forum since there is no claim here that the payment bonds have not been filed.
Concur — Lerner, P. J., Sullivan, Nardelli and Rubin, JJ.