ALBANY—The Appellate Division of the New York State Supreme Court affirmed on Thurs., April 11, an initial decision rendered last fall by Supreme Court Justice McGinty to dismiss challenges from the construction industry on procedural grounds related to venue asserted by New York State Department of Labor and the Attorney General.

In its decision, the Appellate Division of the Supreme Court noted that it was not ruling on the merits of the law.

The Appellate Division’s decision effectively ends the current stay on implementation that has been in place since May 31, 2023. As such, NYSDOL is no longer prohibited from implementing this provision of the Adopted Rule, it was reported in a statement by the New York Construction Materials Association, Inc.

The Construction Industry Council of Westchester & Hudson Valley, Inc., will continue to monitor the matter going forward, including what guidance is published by the NYSDOL, said John T. Cooney, Jr., executive director of the 500-member trade association. He said the trade association will schedule an information session for its membership once the DOL guidance is published.

Legislation pertaining to hauling aggregate supply construction materials (A.8727/S.7811) was signed into law by Gov. Kathy Hochul on Feb. 24, 2022, amending a section of the law (paragraph f of subdivision 3-a of section 220) of the labor law relating to the payment of prevailing wage for work involving the delivery to and hauling of aggregate supply construction materials.

Paragraph f is amended to read as follows: f. Prevailing wage shall be paid for work performed on a public works [project] worksite pursuant to this section for any work involving the delivery to and hauling from such [projects] worksites of aggregate supply construction materials, as well as any return hauls, whether empty or loaded and any time spent loading/unloading. (NOTE: Matter in italics is new; matter in brackets [ ] is old law to be omitted.)

Text of Proposed Rule: A new Part 222 is added to Chapter III of title 12 NYCRR to read as follows:

Part 222 – Hauling of Aggregate Supply Construction Materials

222.1 Definitions

For the purposes of Section 220 of the Labor Law:

(a) “Worksite” means the area in which the improvements associated with a specific project, as defined in the construction contract, and any surrounding areas supporting that specific project.

(b) “Central stockpile” means a location of centrally stockpiled materials solely dedicated for use on a public work project that is not part of a worksite but intended to support the worksite.

(c) “Aggregate supply construction materials” means sand, gravel, stone, crushed stone, dirt, soil, millings, and fill.

222.2 Application

For the purposes of Section 220 of the Labor Law:

(a) Prevailing wage shall be paid for work performed at a worksite involving the delivery of aggregate supply construction materials to such worksite.

(b) Prevailing wage shall be paid for work performed involving the hauling of aggregate supply construction materials from a worksite to a central stockpile, as well as any return hauls, empty or loaded, time spent loading or unloading at a worksite, and time spent loading or unloading at a central stockpile related to hauls from or to a worksite.

(c) Prevailing wage shall be paid for work performed within a 50-mile radius of a worksite involving the delivery of aggregate supply construction materials from a vendor of aggregate supply construction materials, such as a plant or quarry, to a worksite, except prevailing wage shall not be paid to direct employees of a supplier of aggregate supply construction materials, when making a single delivery in any given day.