Asbestos Industries of America, Inc. v. New York State Department of Labor

Appellate Division of the Supreme Court of New York

Asbestos Industries of America, Inc. v. New York State Department of Labor

224 A.D.2d 414, 637 N.Y.S.2d 750, 1996 N.Y. App. Div. LEXIS 870

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 5, 1996

StatusPublished

Cited by2 cases

This text of 224 A.D.2d 414 (Asbestos Industries of America, Inc. v. New York State Department of Labor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Asbestos Industries of America, Inc. v. New York State Department of Labor, 224 A.D.2d 414, 637 N.Y.S.2d 750, 1996 N.Y. App. Div. LEXIS 870 (N.Y. Ct. App. 1996).

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Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Department of Labor, dated June 22, 1994, which, after a hearing, found that the petitioner, Asbestos Industries of America, Inc., was vicariously liable for the willful violation by its subcontractor, A & L Environmental Services, Inc., of Labor Law § 220 et seq., in failing to pay prevailing wages and benefits to 57 of its employees on an asbestos abatement project for the East Islip Union Free School District, and fixed the total violation in the principal sum of $60,175.86, plus interest in the amount of 16% and a civil penalty in the amount of 25%.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner’s contention, the respondent agency’s determination with respect to underpayments was supported by substantial evidence including the testimony of its investigator and the subject employees (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of L & M Co. v New York State Dept. of Labor, 171 AD2d 795; Matter of Mid Hudson Pam Corp. v Hartnett, 156 AD2d 818).

The petitioner’s contention that the charges concerning the East Islip and Lindenhurst contracts should not have been joined in one hearing is not properly before us. The petitioner failed to raise this issue at the administrative hearing (see, Matter of Simpson v Wolansky, 38 NY2d 391; Matter of International Fid. Ins. Co. v Hartnett, 199 AD2d 1084; Matter of Nelson v Coughlin, 188 AD2d 1071). In any event, the consolidation of the cases was a proper exercise of the [415]*415administrative agency’s discretion (see, Matter of Reisner v Board of Regents, 142 AD2d 22, 30; Matter of Bayron v New York State Dept. of Motor Vehicles, 28 AD2d 993).

We have reviewed the petitioner’s remaining contentions and find them to be without merit (see, Labor Law § 220-b [2] [c], [d]; § 223; Ames Constr. Co. v Dole, 727 F Supp 502, 508; Winzeler Excavating Co. v Brock, 694 F Supp 362, 367; Matter of City Constr. Dev. v Hartnett, 192 AD2d 651). Mangano, P. J., Copertino, Joy and Altman, JJ., concur.

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—Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Department of Labor, dated June 22, 1994, which, after a hearing, found that the petitioner, Asbestos Industries of America, Inc., was vicariously liable for the willful violation by its subcontractor, A & L Environmental Services, Inc., of Labor Law § 220 et seq., in failing to pay prevailing wages and benefits to 57 of its employees on an asbestos abatement project for the East Islip Union Free School District, and fixed the total violation in the principal sum of $60,175.86, plus interest in the amount of 16% and a civil penalty in the amount of 25%.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner’s contention, the respondent agency’s determination with respect to underpayments was supported by substantial evidence including the testimony of its investigator and the subject employees (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of L & M Co. v New York State Dept. of Labor, 171 AD2d 795; Matter of Mid Hudson Pam Corp. v Hartnett, 156 AD2d 818).

The petitioner’s contention that the charges concerning the East Islip and Lindenhurst contracts should not have been joined in one hearing is not properly before us. The petitioner failed to raise this issue at the administrative hearing (see, Matter of Simpson v Wolansky, 38 NY2d 391; Matter of International Fid. Ins. Co. v Hartnett, 199 AD2d 1084; Matter of Nelson v Coughlin, 188 AD2d 1071). In any event, the consolidation of the cases was a proper exercise of the [415]*415administrative agency’s discretion (see, Matter of Reisner v Board of Regents, 142 AD2d 22, 30; Matter of Bayron v New York State Dept. of Motor Vehicles, 28 AD2d 993).

We have reviewed the petitioner’s remaining contentions and find them to be without merit (see, Labor Law § 220-b [2] [c], [d]; § 223; Ames Constr. Co. v Dole, 727 F Supp 502, 508; Winzeler Excavating Co. v Brock, 694 F Supp 362, 367; Matter of City Constr. Dev. v Hartnett, 192 AD2d 651). Mangano, P. J., Copertino, Joy and Altman, JJ., concur.

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224 A.D.2d 414, 637 N.Y.S.2d 750, 1996 N.Y. App. Div. LEXIS 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asbestos-industries-of-america-inc-v-new-york-state-department-of-labor-nyappdiv-1996.

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