Matter of Bob Bruno Excavating, Inc. v. Reardon

Appellate Division of the Supreme Court of New York

Matter of Bob Bruno Excavating, Inc. v. Reardon

2017 NY Slip Op 6827, 153 A.D.3d 1669, 60 N.Y.S.3d 875

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

DecidedSeptember 29, 2017

Docket1118 OP 16-02254

StatusPublished

This text of 2017 NY Slip Op 6827 (Matter of Bob Bruno Excavating, Inc. v. Reardon) 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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Matter of Bob Bruno Excavating, Inc. v. Reardon, 2017 NY Slip Op 6827, 153 A.D.3d 1669, 60 N.Y.S.3d 875 (N.Y. Ct. App. 2017).

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Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to Labor Law § 220 [8]), to review a determination of respondent. The determination, inter alia, found that petitioners had underpaid their workers on certain public works projects.

It is hereby ordered that said petition is unanimously dismissed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding, initiated in this Court pursuant to Labor Law § 220 (8), seeking to annul a determination of respondent that, inter alia, found that petitioners had underpaid their workers on certain public works projects for the City of Auburn. We conclude that the petition must be dismissed. There is no dispute that respondent’s determination was made upon petitioners’ default, and it is well settled that a petitioner “is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination” (Matter of Brisbon v New York City Hous. Auth., 133 AD3d 746, 747 [2015] [internal quotation marks omitted]; see Matter of Matsos Contr. Corp. v New York State Dept. of Labor, 80 AD3d 924, 925 [2011]; see also CPLR 5511). The proper remedy for petitioners is to make an application to respondent to reopen the administrative hearing and/or vacate the default (see *1670 Interboro Mgt. Co. v State Div. of Human Rights, 139 AD2d 697, 698 [1988]). We note that it appears from the parties’ submissions to this Court that petitioners have made such an application and that respondent’s determination thereon is currently pending. In the event that respondent denies the application, petitioners may commence a new CPLR article 78 proceeding to challenge that denial (see generally Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000]; Matter of Tony’s Towing Serv., Inc. v Swarts, 109 AD3d 475, 476 [2013]). At this stage of the litigation, however, the petition must be dismissed (see Matsos Contr. Corp., 80 AD3d at 925-926; see also Brisbon, 133 AD3d at 747; Matter of Brooks v New York City Hous. Auth., 58 AD3d 836, 837-838 [2009]).

Present — Centra, J.P., Peradot-to, NeMoyer, Troutman and Winslow, JJ.

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Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to Labor Law § 220 [8]), to review a determination of respondent. The determination, inter alia, found that petitioners had underpaid their workers on certain public works projects.

It is hereby ordered that said petition is unanimously dismissed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding, initiated in this Court pursuant to Labor Law § 220 (8), seeking to annul a determination of respondent that, inter alia, found that petitioners had underpaid their workers on certain public works projects for the City of Auburn. We conclude that the petition must be dismissed. There is no dispute that respondent’s determination was made upon petitioners’ default, and it is well settled that a petitioner “is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination” (Matter of Brisbon v New York City Hous. Auth., 133 AD3d 746, 747 [2015] [internal quotation marks omitted]; see Matter of Matsos Contr. Corp. v New York State Dept. of Labor, 80 AD3d 924, 925 [2011]; see also CPLR 5511). The proper remedy for petitioners is to make an application to respondent to reopen the administrative hearing and/or vacate the default (see *1670 Interboro Mgt. Co. v State Div. of Human Rights, 139 AD2d 697, 698 [1988]). We note that it appears from the parties’ submissions to this Court that petitioners have made such an application and that respondent’s determination thereon is currently pending. In the event that respondent denies the application, petitioners may commence a new CPLR article 78 proceeding to challenge that denial (see generally Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000]; Matter of Tony’s Towing Serv., Inc. v Swarts, 109 AD3d 475, 476 [2013]). At this stage of the litigation, however, the petition must be dismissed (see Matsos Contr. Corp., 80 AD3d at 925-926; see also Brisbon, 133 AD3d at 747; Matter of Brooks v New York City Hous. Auth., 58 AD3d 836, 837-838 [2009]).

Present — Centra, J.P., Peradot-to, NeMoyer, Troutman and Winslow, JJ.

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2017 NY Slip Op 6827, 153 A.D.3d 1669, 60 N.Y.S.3d 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-bob-bruno-excavating-inc-v-reardon-nyappdiv-2017.

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