The opinion
Matter of Plumbers Local Union No. 1 v
New York City Dept. of Bldgs.
2024 NY Slip Op 32840(U)
August 12, 2024
Supreme Court, New York County
Docket Number: Index No. 160502/2022
Judge: John J. Kelley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 160502/2022
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/13/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART 56M
Justice
-------------------.X INDEX NO. 160502/2022
In the Matter of
MOTION DATE 07/12/2024
PLUMBERS LOCAL UNION NO. 1, UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE MOTION SEQ. NO. 001
PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, and MICHAEL APUZZO
Petitioners/Plaintiffs,
-v- DECISION, ORDER, AND
JUDGMENT
THE NEW YORK CITY DEPARTMENT OF BUILDINGS,
and ACTING COMMISSIONER KAZI MIR VILENCHIK, P.E.,
Respondents/Defendants.
-------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 2, 3, 4, 5, 6, 7, 8,
9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30, 31,32,33,34,35,36,
37,38,39,40,41,42,43,44,45,46,47,48,49, 50, 51, 52,53, 54,55, 56, 57,58,59, 75, 76, 77, 78, 79,
80
ARTICLE 78 (BODY OR OFFICER)/X-MOTION
were read on this motion to/for DISMISS
In this hybrid CPLR article 78 proceeding and action for declaratory relief, the
petitioners/plaintiffs (hereinafter the petitioners)---a trade union local and its highest-ranking
officer---seek relief (a) in the nature of mandamus to compel the respondent/defendant New
York City Department of Buildings (DOB} to enforce the gas, plumbing, and welding worker
qualifications of Admin. Code of City of N.Y. (hereinafter Administrative Code or Admin. Code)§
28-423.1 and Fuel Gas Code (hereinafter FGC) §§ 404.21-404.21.1, (b) in the nature of
prohibition preventing the DOB from granting gas work authorization requests that do not
comport with those Administrative Code and FGC provisions, and (c) for judicial review of the
DOB's determinations that already had approved gas work authorization requests for
landowners who employed workers who did not comport with those provisions. They also seek
a judgment declaring that the DOB is obligated, in the future, strictly to comply with those worker
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
[* 1] 1 of 12
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qualification provisions of the Administrative Code and FGC in granting authorizations to
connect natural gas service to premises, and to deny such authorizations where the workers
hired to connect gas service appurtenances do not meet the worker qualification standards set
forth therein. The respondents/defendants (hereinafter the respondents) cross-move pursuant
to CPLR 7804(f), 3211 (a)(3), and 3211 (a)(7) to dismiss the petition for the petitioners' lack of
capacity, lack of standing, and failure to state a cause of action. In an order dated December
14, 2023, this court granted the petitioners' motion (MOT SEQ 002) for leave to serve
supplemental papers in opposition to the respondents' cross motion. The cross motion is
granted, the petition/complaint is dismissed, and the proceeding/action is dismissed.
Admin. Code § 28-423.1 provides as follows:
"For the purposes of this article, 'gas work' means work covered by section 101.2
of the New York city fuel gas code, where such work is required by this code to
be performed under the direct and continuing supervision of a licensed master
plumber, provided that the term 'gas work' shall not include periodic inspections
required pursuant to article 318 of chapter 3 of title 28 of the administrative code.
It shall be unlawful to perform gas work unless such work is performed by:
"1. A licensed master plumber; or
"2. A person working under the direct and continuing supervision of a
licensed master plumber if such person:
"2.1. Holds a full gas work qualification pursuant to this article; or
"2.2. Holds a limited gas work qualification pursuant to this article and is
performing such work under the direct supervision of (i) a person who
holds a full gas work qualification pursuant to this article or (ii) a licensed
master plumber.
"Exception: The provisions of this article shall not apply to gas work performed,
serviced and maintained by utility corporations and subject to the jurisdiction of
the New York state public service commission."
FGC § 101.2 articulates the same definition of "gas work" as is set forth in the Administrative
Code. FGC § 404.21 provides that "[g]as work shall be performed by individuals possessing the
qualifications set forth in Article 28-423 of the Administrative Code. Welders must be qualified
in accordance with Section 404.21.1." FGC § 404.21.1, in turn, reads as follows:
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES ANO
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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"Welder's qualifications.
"Welders installing gas piping within buildings at any pressure shall comply with
the following:
"1. Welders shall be qualified for all pipe sizes, wall thicknesses and all
positions in accordance with the ASME Boiler and Pressure Vessel Code,
Section IX. Requalification of welders is required on an annual basis and
when requested by the commissioner.
"2. Welder qualification testing shall be performed by an approved agency
and the inspector witnessing the test shall be an authorized AWS
Certified Welding Inspector. Radiographic test specimens shall be
evaluated by a radiographic inspector having a minimum radiography
qualification of Level II in accordance with the ASNT, Document No. SNT-
TC-1 A, Supplement A.
"3. Copies of the certified welder qualification reports shall be maintained
by both the approved agency and the licensed master plumber employing
the welder(s) for at least six years and shall be made available to the
department upon request.
"4. The approved agency shall submit certified welder qualification reports
to the department upon successful qualification of a welder and when
requested by the commissioner.
"5. The licensed master plumber employing the welder(s) shall submit a
statement to the department including who welded the gas piping along
with a copy(s) of the certified welder qualification report(s) witnessed by a
representative of the licensed master plumber, at the time of the first
roughing inspection.
"6. Requalification of a welder is required should the welder fail to
maintain welder's continuity every six months. The licensed master
plumber employing the welder shall maintain a welder continuity log and
the log shall be made available to the department upon request."
The petitioners alleged that the DOB has violated these code provisions by approving
gas work for buildings in which that work would not be, or was not anticipated to be, performed
by persons who met these qualifications. The institutional petitioner is a union, and the
individual petitioner is that union's manager. They alleged that the union represented many
members who hold gas work qualification cards issued by the DOB, and who are certified to
weld gas piping, and that the union trained, tested, and qualified members for gas pipe welding.
The petitioners further asserted that union members have lost opportunities for work, and
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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therefore income and benefit contributions, to non-members who allegedly were not qualified
under those code provisions and who may allegedly charge landowners less money for the work
as a result. In addition, the petitioners alleged that its members' safety has been placed at risk
because of welding done by allegedly unqualified workers. Moreover, the petitioners asserted
that several of the union's members and representatives serve on licensing boards and Building
Code committees, and, thus, have an interest in the enforcement of welding qualification laws.
When assessing the adequacy of a pleading in the context of a motion to dismiss under
CPLR 3211(a)(7), the court's role is "to determine whether fthe] pleadings state a cause of
action" (511 W. 232nd Owners Corp. v Jennifer Realty Co,, 98 NY2d 144, 151-152 [2002]). To
determine whether a claim adequately states a cause of action, the court must "liberally
construe" it, accept the facts alleged in it as true, accord it "the benefit of every possible
favorable inference" (id. at 152; see Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881 [2013);
Simkin v Blank, 19 NY3d 46 [2012)), and determine only whether the facts, as alleged, fit within
any cognizable legal theory (see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d 991 993,
[2024]; Hurrell-Harring v State of New York, 15 NY3d 8 [2010]; Leon v Martinez, 84 NY2d 83
[1994]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st
Dept 2004]; CPLR 3026). "The motion must be denied if from the pleading's four corners
factual allegations are discerned which taken together manifest any cause of action cognizable
at law" (511 W 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [internal quotation
marks omitted]; see Leon v Martinez, 84 NY2d at 87-88; Guggenheimer v Ginzburg, 43 NY2d
268 (19771). Thus, "[w]hether [the nonmoving party] can ultimately establish its allegations is
not part of the calculus in determining a motion to dismiss" (EBC /, Inc. v Goldman, Sachs &
Co., 5 NY3d 11, 19 [2005]; see Taxi Tours, Inc. v Go New York Tours, Inc., 41 NY3d at 993;
Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 239 [20211).
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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The facts as alleged by the petitioners here, however, failed to state a cause of action for
relief either in the nature of prohibition or in the nature of mandamus to compel.
"The extraordinary remedy of prohibition is available only where a judicial or quasi-
judicial body acts or threatens to act 'without or in excess of its jurisdiction and then only when
the clear legal right to relief appears and, in the court's discretion, the remedy is warranted"'
(Matter of Allen B. v Sproat, 23 NY3d 364, 375 [2014], quoting Matter of Schumer v Holtzman,
60 NY2d 46, 51 [1983]; see CPLR 7803[2]; Matter of Holtzman v Goldman, 71 NY2d 564, 569
[1988]; Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). "The writ is generally not available
to correct common procedural or substantive errors, and will not lie where its proponent has
access to another adequate legal remedy" (Matter of Town of Huntington v New York State Div.
of Human Rights, 82 NY2d 783, 786 [1993] [citations omitted]). The petitioners have failed to
establish a clear legal right to the relief that they have requested in this regard.
As relevant here, mandamus to compel lies where an administrative body has failed to
perform a duty enjoined upon it by law, the performance of that duty is mandatory and
ministerial rather than discretionary, and there is a legal right to the relief sought (see CPLR
7801 [1 ]; Matter of Hoffmann v New York State Ind. Redistricting Commn., 41 NY3d 341, 364-
365 [2023]; New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]; see
also Klostermann v Cuomo, 61 NY2d 525, 540 [1984] [explaining that the 'function of
mandamus (is) to compel acts that officials are duty-bound to perform']).
"Mandamus is generally not available to compel government officials to enforce
laws and rules or regulatory schemes that plaintiffs claim are not being
adequately pursued (see e.g. Jones v Beame, 45 NY2d 402, 409 [1978], citing
People ex rel. Clapp v Listman, 40 Misc 372 [Sup Ct, Special Term, Onondaga
County 1903] [mandamus does not lie to compel enforcement of Sunday 'blue'
laws]; Matter of Walsh v LaGuardia, 269 NY 437 [1936] [no right to compel
Mayor and Police Commissioner to prohibit operators of nonfranchised bus
routes]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1st Dept 1968], affd 23 NY2d
764 [1968] [no right to compel enforcement of laws governing operation hours of
coffee houses]; Matter of Morrison v Hynes, 82 AD3d 772 [2d Dept 2011] [cannot
compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 AD2d 386
[2d Dept 1998] [no mandamus to compel police to make arrests]). This reflects
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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the long-standing public policy prohibiting the courts from instructing public
officials on how to act under circumstances in which judgment and discretion are
necessarily required in the fair administration of their duties"
(Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, 117-118
[1st Dept 2017] [city officials did not have mandatory duty to enforce statutes and Admin. Code
provisions regulating the slaughter of poultry]; Martin v La Rocca, 2022 NY Slip Op 31510[U],
*12, 15, 2022 NY Misc LEXIS 2434, *19-20, 26 [Sup Ct, N.Y. County, May 10, 2022], affd 224
AD3d 595 [1st Dept 2024] [New York State Division of Housing & Community Renewal did not
have mandatory duty to enforce Rent Stabilization Code, and DOB did not have mandatory duty
to require the amendment of a certificate of occupancy]; see also Matter of Okslen Acupuncture,
P.C. v Dina/lo, 77 AD3d 451, 451-452 [2d Dept 2010) [NYS Department of Insurance did not
have mandatory duty to conduct periodic examinations of insurance companies that could be
enforced by a writ of mandamus], citing Klostermann v Cuomo, 61 NY2d 525, 539 [1984]; LMK
Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; ·
Sightseeing Tours of Am., Inc. v Air Pegasus Heliport, Inc., 40 AD3d 354 [1st Dept 20071).
Even if the DOB had a mandatory duty to enforce the welder and gas work qualification
provisions of the Administrative Code and the FGC (see generally Housing & Devel. Admin. of
City of N. Y. v Ruel Realty Co., 94 Misc 2d 43, 47-48 [Sup Ct. N.Y. County 1978] [NYC
Department of Housing Preservation and Development has mandatory duty to enforce Admin.
Code provision requiring adherence to minimum housing standards]), the petitioners themselves
did not establish that they had a clear legal right to relief against the DOB. In Matter of Perazzo
v Lindsay (30 AD2d 179, 179 [1st Dept 1968], affd 23 NY2d 764 [1968]), the petitioners sought
to compel City officials to enforce provisions of the Penal Law and Administrative Code. In
denying the petition, the Appellate Division, First Department, determined that enforcement
decisions were executive prerogatives, and may only be judicially compelled '"when the facts
show an uncontestable right to the performance of a ministerial act"' (id. at 180, quoting Matter
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES ANO
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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of Ungar v Wagner, 22 Misc 2d 403, 404 [Sup Ct, N. Y. County 1960]). Since agency
enforcement generally is a discretionary act, and because there is no right even to compel the
DOB to perform an investigation to assure compliance with Administrative Code and FGC
requirements, the petitioners cannot compel the DOB to enforce provisions of those codes.
Therefore, the petitioners failed to state a valid cause of action for relief in the nature of
mandamus to compel enforcement.
While the petitioners may have stated a cause of action for mandamus to review certain
DOB approvals for gas or welding work permits (see CPLR 7803[3]), they did not specifically
identify the issuance of any particular permits that were the subject of their challenge, but only
referenced instances in which they learned that uncertified gas workers or welders may have
performed regulated work. Moreover, for the same reason that they failed to state a cause of
action for relief in the nature of mandamus to compel, they failed to state a cause of action for a
judgment declaring that the DOB must enforce rules and regulations that are binding upon it ( cf.
Klostermann v Cuomo, 61 NY2d at 541 [where mandamus to compel is an appropriate remedy,
declaratory relief may also be appropriate to compel an agency to conform its future conduct to
its mandatory statutory duties]).
The petitioners, however, lack standing to prosecute this proceeding and action.
As the Court of Appeals explained it in Society of Plastics Indus. v County of Suffolk (77
NY2d 761, 769 [1991]),
"[w]hether a person seeking relief is a proper party to request an adjudication is
an aspect of justiciability which, when challenged, must be considered at the
outset of any litigation. Standing is a threshold determination, resting in part on
policy considerations, that a person should be allowed access to the courts to
adjudicate the merits of a particular dispute that satisfies the other justiciability
criteria.
(see also Matter of CPD NY Energy Corp. v Town of Poughkeepsie Planning Bd., 139 AD3d
942, 943 [2d Dept 20161).
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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"That an issue may be one of 'vital public concern' does not entitle a party to
standing. Courts surely do provide a forum for airing issues of vital public
concern, but so do public hearings and publicly elected legislatures, both of
which have functioned here. By contrast to those forums, a litigant must
establish its standing in order to seek judicial review. Thus the first question we
confront -- ultimately dispositive here -- is whether these plaintiffs are proper
persons to challenge the administrative action of the Suffolk County Legislature
under SEQRA. The burden of establishing standing to raise that claim is on the
party seeking review"
(Society of Plastics Indus. v County of Suffolk, 77 NY2d at 769 [citations omitted] [emphasis
added]). The court notes that, in Saratoga County Chamber of Commerce v Pataki (100 NY2d
801, 813, [2003], cert denied 540 US 1017 [2003]), the Court of Appeals held that where an
individual plaintiff had standing to sue, it was unnecessary to address the question of whether
the individual's organization also had standing. Several subsequent decisions in this State have
reiterated this principle (see Mulgrew v Board of Educ. of the City School Dist. of the City of
N. Y., 75 AD3d 412, 414 n 2 [1st Dept 2010]; New York State United Teachers v State of New
York, 140 AD3d 90, 95 [3d Dept 2016]}. This court nonetheless concludes that neither of the
petitioners met their burden of establishing that they had standing to challenge the DOB's
alleged failure to enforce the gas and welding worker qualifications set forth in the
Administrative Code or the FGC.
To challenge an administrative action, a petitioner must demonstrate direct harm that is
different from the public at large and injures an interest that that the law was intended to protect
(see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 774; see also Matter of Messina
v Sobol, 159 AD2d 916 [3d Dept 1990]}.
In Society of Plastics Industries, a trade association challenged a county legislature's
enactment of an ordinance because the legislature had not first conducted an environmental
impact review, as required by state law. The Court of Appeals held that the trade association
lacked standing because it failed to show that the economic injuries that allegedly would
incurred by reason the legislature's failure to enforce the state law were within the law's zone of
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APPRENTICES. OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
[* 8] 8 of 12
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interests (Society of Plastics Indus. v County of Suffolk, 77 NY2d at 778). Similarly, in Matter of
Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead (69 NY2d 406, 406
[1987]), the Court of Appeals rejected a CPLR article 78 challenge by local commercial property
owners who sought to enjoin the construction of a radio tower. There, the Court found that the
petitioners lacked standing, as their "only substantiated objection was the threat of increased
business competition, which is not an interest protected by the zoning laws" (id. at 415). In
Matter of Professional Ins. Agents of N. Y. State v New York State Ins. Dept. (197 AD2d 258,
259 [3d Dept 1994]), a trade association representing insurance agents challenged an
administrative interpretation of the Insurance Law that had been rendered by the New York
State Insurance Department. The Appellate Division, Third Department, determined that the
petitioner lacked standing, even though it claimed that such an interpretation would result in a
potential "loss of revenue to their members" (id. at 260). The Third Department concluded that
the alleged harms were "conjectural" and outside of the intended protections of the Insurance
Law (id.; see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 214 [2004]).
Most germane to the instant dispute is the decision of the Appellate Division, Second
Department in Matter of Melrose Credit Union v City of New York (161 AD3d 742, 747 [2d Dept
20181). In that matter, several credit unions challenged the alleged failure of the New York City
Taxi and Limousine Commission (TLC) to enforce a City regulation affording yellow-taxicab
medallion owners the exclusive right to provide rides to persons hailing a taxicab on a public
thoroughfare. One of the credit unions alleged that it had provided loans to medallion holders
that permitted them to purchase their medallions, that it held a security interest on 1,432
medallions, and that, due to the nature of its lending business, most of the medallion owners
were "members" of the credit union. The Second Department first explained that,
"[t]he petitioner must ... demonstrate that "'the injury asserted falls within the
zone of interests or concerns sought to be promoted or protected by the statutory
provision under which the agency has acted"' (Matter of Radow v Board of
Appeals of Town of Hempstead, 120 AD3d 502,502 [2d Dept 2014], quoting
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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Matter of Riverhead PGC, LLC v Town of Riverhead, 73 AD3d 931, 933 [2d Dep
201 OJ). '[TJhe requirement that a petitioner's injury fall within the concerns the
Legislature sought to advance or protect by the statute assures that groups
whose interests are only marginally related to, or even inconsistent with, the
purposes of the statute cannot use the courts to further their own purposes at the
expense of the statutory purposes' (Society of Plastics Indus. v County of Suffolk,
77 NY2d at 774)"
(Matter of Melrose Credit Union v City of New York, 161 AD3d at 745). In applying that rule of
law, the Second Department concluded that,
"[a]lthough it is clear that [the credit union] would suffer an injury different from
that of the public at large, it failed to adequately allege that it would suffer direct
harm as a result of the TLC's purported failure to enforce taxicab medallion
owners' exclusive right to hails. [The credit union's] alleged injury-the
'deteriorating financial condition of [its] medallion loan portfolio'-is an indirect
consequence of the injuries that it alleged were suffered by medallion owners
(see City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616 [2009]; cf. North
State Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d 5, 17 [2d Dept
2012]).
(id. at 746). Moreover, regardless of whether a medallion owner itself had challenged the TLC's
purported failure to enforce the rule, the Court determined, in effect, that the interests of neither
the credit union nor an individual medallion owner fell within the zone of interests sought to be
protected by the street-hailing rule. In this regard, the Court quoted from the applicable rule, 35
RCNY 52-01, which provided that,
''.[t]o promote public comfort and convenience, and taking into account the overall
public transportation network of the City, the [TLC] will establish an overall public
transportation policy governing for-hire transportation services in the City,
including taxi, limousine, paratransit and commuter van services,"
and that the rule had been promulgated to "establish regulations for E-Hail and E-Payment that
will encourage innovation, provide desired services to taxi passengers, promote safety and
consumer protection, and create income opportunities for drivers" (emphasis added), but not
necessarily medallion owners, who rarely were themselves drivers.
Here, the petitioners do not have standing because their alleged injuries are economic,
conjectural, and not distinct from injuries suffered by the public at large. Moreover, the interests
sought to be protected by the Administrative Code and FGC worker qualification, experience,
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APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
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and certification requirements were not meant to include the economic interests of qualified gas
workers and welders, whether members of a union or not. Rather, those requirements were
meant to protect the integrity of buildings, gas and plumbing infrastructure connected to
buildings, and the public safety. New York City's various construction codes, including the FGC,
offer "reasonable minimum requirements and standards ... in the interest of public safety,
health, welfare and the environment" (Admin Code§ 28-101.2) and "minimum standards to
safeguard life or limb, health, property, public welfare and the environment" (FGC § 101.4).
The petitioners alleged in the petition/complaint that the union's members have been
deprived of "job opportunities, income and benefit fund contributions" due to the DOB's alleged
failure to enforce qualification requirements. Like the trade association in Society of Plastics
Industries, the property owners in Sun-Brite Car Wash, the insurance agents in Professional
Insurance Agents of N. Y. State, and the credit union in Melrose, the injuries that the petitioners
in this matter claim to have suffered are primarily economic harms that are outside of the zone
of interests protected by the relevant ordinance and rule (see, e.g., Matter of Professional Ins.
Agents of N. Y. State v New York State Ins. Dept., 197 AD2d at 261 [the "purpose of insurance
law ... is to protect contractors (i.e., insureds and insurers), not the economic interests of
insurance agents."]).
Even were the claims of potential economic loss cognizable and sufficient to establish
standing, the proof submitted by the petitioners is slight. Although the court permitted the
petitioners to submit supplemental papers in opposition to the respondents' cross motion, at
most, they have shown that unqualified or uncertified gas workers or welders were permitted to
perform work at a handful of job sites, or that work at some of those sites was substandard.
This evidence is not proof of a systemic failure of the DOB carefully to review permit
applications, or of the qualifications of persons anticipated to perform tasks on permitted gas
and welding work.
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APPRENTICES OF THE PLUMBING ANO PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
[* 11] 11 of 12
INDEX NO. 160502/2022
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/13/2024
The court rejects the petitioners' contention that they have standing to challenge the
DOB's failure to enforce the relevant rules because the alleged failure placed union members at
high risk of injury or death. These alleged harms are speculative and conjectural, given that, as
the respondents correctly noted, the union members "would not be working at the sites where
gas work is being completed by allegedly unqualified individuals." Even if the union's members
would suffer societal risks from lesser quality work performed by unqualified individuals, such
harms are not "in some way different from that suffered by the public at large, within the zone of
interests of' the relevant ordinances (Society of Plastics Indus. v County of Suffolk, 77 NY2d at
762).
Accordingly, it is,
ORDERED and ADJUDGED that the respondents/defendants' cross motion is granted,
the petition/complaint is dismissed, and the proceeding/action is dismissed.
This constitutes the Decision, Order, and Judgment of the court.
8/12/2024
DATE
MOTION: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
CROSS MOTION: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
160502/2022 PLUMBERS LOCAL UNION NO. 1, UNITED ASSOCIATION OF JOURNEYMEN AND Page 12 of 12
APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND
CANADA ET AL vs. THE NEW YORK CITY DEPARTMENT OF BUILDINGS ET AL
Motion No. 001
[* 12] 12 of 12