LBS of Frankfort, Inc. v. Hudacs

185 A.D.2d 476, 1 Wage & Hour Cas.2d (BNA) 134, 586 N.Y.S.2d 333, 1992 N.Y. App. Div. LEXIS 8971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1992
• Status: Published

Opinion

Mercure, J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Labor Law §§ 220 and 220-b) to review a determination of respondent which, inter alia, found that petitioner failed to pay prevailing wage and wage supplements.

In our view, there is substantial evidence in the record to support respondent’s factual determination that Lester Mancuso, a mason hired by petitioner to perform duties on a public works project, was petitioner’s employee and not an independent contractor (see, Labor Law § 220 [8]). Evidence was adduced at the administrative hearing that Mancuso had no written contract with petitioner, did not hold himself out to the public to be an independent contractor, had never worked as a subcontractor on a public works project, had no employees and worked for no other employer during his engagement with petitioner (see, Matter of Etherington v Empire Improvements, 55 AD2d 762). Even more significant, although all subcontractors on the project performed their contracted work for a fixed price to be paid at the conclusion of the work, the evidence showed that Mancuso was to be paid at a periodic rate for the number of days and half-days he actually worked (see, supra). Finally, we find ample basis in the record to affirm respondent’s finding of willfulness (see, Matter of Mid Hudson Pam Corp. v Hartnett, 156 AD2d 818, 821).

Mikoll, J. P., Yesawich Jr., Crew III and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.